District Court New South Wales Medium Neutral Citation: R v Nguyen [2014] NSWDC 357 Hearing dates: 25/07/2014 Decision date: 26 September 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Sentence: term of imprisonment of 6 years with a non-parole period of 3 years and 3 months. Catchwords: Criminal – Sentence, supply a prohibited drug, plea of guilty, Legislation Cited: Crimes (Sentencing Procedure) Act Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: R v Buttrose [2011] NSWCCA 35 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Jimmy v R [2010] NSWCCA 60 Lowe v R [1984] HCA 46 Markarian v R (2005) 228 CLR 357 Muldrock v R (2011) 244 CLR 120 Postiglione v R [1997] HCA 26 R v Birnie [2014] NSWDC 146 R v Thomson and Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Director of Public Prosecutions Giang Nam Nguyen - Offender Representation: Counsel: Director of Public Prosecutions Mr James QC – Offender File Number(s): 2013/17396 sentence 1. HIS HONOUR: Giang Nam Nguyen appears today for sentence in relation to an offence alleging that he, on 5 day of June 2013 at Bondi Junction in the State of New South Wales, did supply a prohibited drug, to wit, three kilograms of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That matter came to this Court by way of committal for sentence. It is agreed that the prisoner entered the plea of guilty at the first reasonable opportunity. The prisoner is thus entitled to a discount of 25% upon the otherwise appropriate sentence, in accordance with the judgment of Thomson and Houlton, to recognise the utilitarian benefit of that plea of guilty. 2. The offence to which the prisoner pleaded guilty is created by s 25(2) Drug Misuse and Trafficking Act, and carries a maximum penalty of life imprisonment and/or a pecuniary penalty of $550,000. It has a standard non parole period of 15 years' imprisonment, in accordance with the provisions of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The prisoner has been in custody since 5 June 2013, the date of his arrest. All time spent in custody up until the present time will naturally be taken into account in sentencing the offender for the offence. There is a matter on a s 166 Certificate, as I understand it, of possessing prohibited drugs, which I will direct in due course to be dismissed. 3. This prisoner comes forward for sentence in the context of my having sentenced a co accused, Mr Birnie, on 13 March 2014, having heard the evidence and the submissions the previous week on 5 March 2014. My judgment in relation to that matter, and the orders I made sentencing that offender to a term of imprisonment of six years and five months with a non parole period of three years and ten months, is set out in a decision that may be found on the District Court's database at [2014] NSWDC 146. 4. Mr James QC who as usual skilfully represents his client's interests in this matter, has made the point - although there is much in common in the sentencing of this offender with that sentencing exercise undertaken in relation to Mr Birnie - that there are particular facts upon which this prisoner is to be sentenced that may, to some extent, be different from the basis upon which this prisoner was identified and implicated in the offending set out in the facts relating to Mr Birnie. I have taken that submission into account as I must properly do. It will be the case, however, when I turn to some matters of principle, and particularly the issue of comparative sentencing, that I will not be required in this matter to reiterate some of the analysis I undertook of what were said to be comparative cases to be taken into account in this sentencing exercise. 5. The facts are, if I might add to perhaps what is set out in the facts "sheet" relating to this prisoner, that Mr Birnie had been recruited in Canada some weeks before an importation of 2.98 kilograms of methylamphetamine into Australia, to come to Australia and remain in Australia for a number of days as a type of 'sleeper', to be activated to take possession of the drugs that were imported, in order to transfer them to another person. The other person to whom he ultimately transferred these drugs was this prisoner. 6. The circumstances in which this prisoner came to be arrested were that Mr Birnie had rented a room at a commercial apartment block in Bondi Junction, and was contacted by this prisoner via text messaging, and arrangements were made for the two men to meet late in the day of 5 June 2013. 7. Unbeknownst to this prisoner and Mr Birnie, the telephone communications, of whatever form they were, that took place between this prisoner, Mr Birnie, this prisoner and others, as I would understand it, were the subject of a police operation involving telephone intercept activity. Mr Birnie requested the prisoner to bring an empty backpack with him, and the prisoner in these proceedings attended upon the premises at 26-30 Spring Street, Bondi Junction, with that backpack at around 6.45pm. 8. Unbeknownst to Mr Birnie and the prisoner, not only were their telecommunications contacts intercepted by police, but they were the subject of physical surveillance. Mr Nguyen was seen to carry a backpack into the building, the prisoner met with Mr Birnie obviously inside the building, and ultimately the prisoner was intercepted by police some time shortly after 7.10pm, in possession of a black Nike backpack. 9. He was arrested. A search of his backpack revealed he was in possession of a package wrapped by red coloured wrapping paper, having a yellow envelope attached to it. Inside this wrapping there were three resealable plastic bags containing an off white crystallised substance. The three bags were wrapped in a white bath towel. It was subsequently discovered that each of the bags found weighed 990.5 grams, 995.8 grams and 997.3 grams, representing a total weight of 2.98 kilograms. 10. I have read the analyst's certificate. One bag was analysed, it was found to be methylamphetamine in crystalline form, otherwise known as 'ice', and one bag that was tested for purity had a purity level of 85.5%. It could be reasonably concluded that the other bags were of similar purity. I just pause for a moment, Mr Crown, there's an obvious mistake in the facts that I didn't pick up. At the bottom of the last line of the first page of the facts it refers to the bags being 990.5 kilograms, 995.8 kilograms and 997.3 kilograms. That's why I paused when I was reading it out from the facts, that should be grams of course as I've read onto the transcript. I'll have the facts amended accordingly, but it's noted in my judgment and what I have just said will be part of the remarks on sentence. 1. Mr Birnie was in due course arrested inside the apartments, and I need not dwell upon his arrest and what followed from that. It is all set out in my judgment. 2. This prisoner was prepared to enter into an interview with police and in that interview he did not tell, in my view, the entire truth, about his state of knowledge of relevant matters concerning his visit to Mr Birnie and the contents of the backpack. I accept that, from what has been put from the bar table, and my now wider understanding of the police investigation, the prisoner did nominate a person who he described as a friend of his who was known to the police, as being the recipient of the parcel, and that he the prisoner was to receive $1,000 for picking up the contents of the backpack and delivering those contents to the person that he nominated. 3. Whether of course he knew the full name of the person or only the name "Bobby" he gave to the police, to my mind, ultimately is neither here nor there, in the sense that, objectively, I am assured that police were already aware of the identity of that person, and that person was subsequently arrested, not through the efforts of the prisoner, but because of the wider scope of the police investigation. 4. It is correct, as I pointed out in the course of the submissions, that the rejection of any part of the prisoner's account to the police, in the interview that was conducted after his arrest, does not in some respects assist me in relation to fact finding; I cannot fill in gaps with idle speculation. Ultimately, it has been submitted on behalf of the prisoner - and in my discussion with the learned Crown Prosecutor I did not understand him to demur to the submission made by learned senior counsel for the prisoner - that this prisoner can be categorised as an internal courier and not the primary person to whom the methylamphetamine was to be provided for ongoing distribution. 5. Of course, the prisoner's role in acting as this type of intermediary was a significant role or an important role; it was a mechanism by which the prohibited drugs could be passed on to others for the purposes of wider distribution into the community. In many respects the prisoner's role was very similar to that of Mr Birnie, and I do not propose to again dwell on the analysis I made of Mr Birnie's criminality. It seems to me, in the context of a comparison of the objective circumstances pertaining to Mr Birnie and this prisoner, that whilst their roles were similar, this prisoner's objective involvement was somewhat less than Mr Birnie's, for two reasons that I can identify, based upon the facts available in both cases. 6. Mr Birnie had a greater period to contemplate his involvement in this matter. He had come to Australia a couple of weeks after first being approached, he had come to Australia solely to commit the crime that he was arrested for and convicted of, albeit he also came here for something of a holiday, and on the evidence available to me he was to receive greater remuneration than this particular prisoner. These matters are matters that distinguish the criminality of the two prisoners favourably to this prisoner. 7. In summary, it might be said in the context of what has been put to me about issues of parity and appropriate disparity, that Mr Birnie's subjective circumstances were slightly more favourable than those of this prisoner in several respects. He was an older man with a clear criminal history and proven history of industry over a longer period of time than this particular prisoner. 8. This prisoner, I bear in mind, in the context of assessing the comparative culpability of the offenders and the relevant comparative subjective circumstances, has findings of guilt in Victoria in July 2002, for obtaining property by deception, for which he was convicted and placed on a community based order for eight months, attempting to obtain property by deception and obtaining a motor vehicle driver's licence by misrepresentation, for which he was convicted and placed on another community based order for eight months. He also had a finding of guilt at the Sunshine Magistrate's Court on 29 October 2001 for obtaining property by deception, handling, receiving or disposing of stolen goods and attempting to obtain property by deception, for which he received an aggregate fine of $800 without conviction. 9. It must be fairly said, in the scheme of things of course these matters are relatively minor findings of guilt, and they are, it must be fairly said, of some antiquity by relationship to the offending with which I am concerned. But it is to be borne in mind that this prisoner came to Australia in 1999, as I understand the chronology, for the purposes of undertaking further study, and had committed these offences in Victoria within a couple of years of his arrival in this country. 10. Coming back to the objective circumstances, so far as they may distinguish this prisoner from Mr Birnie, the "co-accused", it is also to be fairly said in favour of this prisoner, as opposed to Mr Birnie, that Mr Birnie had come from a foreign country to commit a serious crime in our country, whereas this prisoner was, at the time of the commission of the offence, a permanent resident and had a legitimate reason for being here. I have endeavoured to take those matters into account as they are relevant in assessing the distinction, if any, that needs to be drawn between the two men. 11. The issue of "parity of sentencing" has been the subject of discussion by a number of authorities. Particular authorities from the High Court of significance are of course the decisions of Lowe v R which in one judgment deals with the issue of a justifiable sense of grievance, which can be a fulcrum for a successful appeal to the Court of Criminal Appeal and the case of Postiglione and in particular the judgment of Gaudron and Dawson JJ is of significance. That last case is of significance when one looks at a more recent decision of Jimmy, a decision of Campbell JA, Howie and Rothman JJ, to identify the judges by their order of seniority, in which they respectively discuss parity principles, both in the context of dealing with cases of like nature, and proper bases for distinguishing between offenders. The matter, in my view, was probably most aptly encapsulated by his Honour Rothman J in his judgment when he spoke of Aristotlean principles of equality, particularly that alike shall be treated alike and the unalike shall be treated unalike to the extent of their unalikeness. That phrase, which I have paraphrased with far less eloquence than his Honour and Aristotle, neatly sums up the essence of parity or disparity in sentencing of offenders charged with common offences particularly. 12. Of course, the matter is concerned not just with the objective facts; there is the general subjective case that has been presented on behalf of the prisoner. I have the evidence of the prisoner's mother by video recording, which I have seen today, and I accept it as evidence as if the mother was in Court, although the Crown has not had a chance to cross-examine her. She describes the prisoner's background. He is one of three sons, his good behaviour at primary school and high school, his attempts to further his education in Vietnam, particularly by entering university. He was unsuccessful on a number of occasions, although ultimately, a few years before he came to Australia, he was able to enter what I understood to be a mining university where he studied for two years. 13. He was encouraged by his mother and his family to come to Australia to better his education, and I understand he came to Australia and undertook some course in English initially. He has a daughter who was born in 2003, as I understood the mother's account. He has a wife who he married in Vietnam in 2008. She has visited the prisoner in custody. She said that his conduct has greatly disappointed her and made her very sad, which I would expect. The prisoner has expressed his regret and sorrow to her and his apology for his breach, which is a very serious breach, of Australian law, and she points out that whilst he is in custody he is unable to care for his daughter or his wife, and she would wish that the Court would extend to him leniency and mercy in its sentencing. 14. These are admirable matters to take into account in every sentencing exercise, but of course in endeavouring to exercise proper sentencing discretion the Court is also constrained by various legal principles emanating from legislation and the decisions of superior courts in fixing an appropriate sentence. 15. I have other material that I have taken into account. I have taken into account evidence from the prisoner's wife in the form of a letter to the Court, talking about the good qualities of the prisoner, his support for his family before he came into custody, the difficulty of his being moved from one prison to another over a period of time, the loss of him as a father and husband whilst he is in custody, and pleading for the opportunity for him to have early return to his family. I have the letter of the prisoner to the Court in which he apologises for his conduct, saying that he was naïve and did not think carefully about what he was doing. He says he understands that what he did was "really wrong". He has contemplated his circumstances whilst in custody and has undertaken courses, including the Getting Smart program, as I would understand it, and English courses to which his learned senior counsel referred from the bar table. 16. I bear in mind, in dealing with the prisoner's letter to the Court, what was said from the bar table about the prisoner being industrious when having the opportunity. Although, as I have pointed out, he has been moved from gaol to gaol and this has disrupted his opportunity to be involved in industry based work, I accept that whenever he has been, for example, at the MRRC or other custodial institutions where work is available, he has taken it up. 17. He spoke about missing his family and learning a great lesson about life in general from his experience in relation to this matter. He understands, as I would read his letter, the significance of the criminal conduct with which I am concerned. I have also read the letter that he has written to his wife and daughter, which speaks of his misery at being in custody and his regret for the impact he has had upon his family. 18. There is also available in the evidence given to the Court two reports, one from the Probation and Parole Service which sets out some history of the prisoner, and a psychological report dated 24 March 2014. 19. Dealing with the report that was tendered as part of the Crown case, the report of the Community Corrections Service. It notes, based upon the information provided by the prisoner and confirmed by the evidence from the prisoner's mother, that the prisoner had a stable upbringing and a supportive family, and that he is currently in a relationship with a child. It sets out the details of his family history, again, I hasten to say, confirmed by the material contained within the mother's videotaped interview, and I do not propose to reiterate that. It notes the fact that the prisoner started using ecstasy periodically in 2006. 20. I pause for a moment to point out that the prisoner was born on 11 December 1974, so on that chronology, firstly, he is now aged 39, was 38 at the time of the offending, but started using prohibited drugs when he was 32, which is an unusual situation. 21. He used ecstasy for recreational purposes. However, in 2012 he started using methamphetamines, as they are described "on the weekend" and that his drug use had escalated, and this had exacerbated the circumstances in which he came to be lured into committing the crime with which I am concerned. He admitted to the Community Corrections officer that he was aware the backpack contained illicit substances, which is somewhat different than the account that he gave to the police. I accept as part of the factual matrix that he was a man without a substantial criminal history, intercepted by police, trying to some extent to talk his way out of the circumstances which he was in, which is a natural instinct in these circumstances where a person who is not a practised criminal is arrested in relation to serious criminal offending. 22. He told the Community Corrections officers that he was transporting the drugs "for financial gain and to support his drug use". He also indicated that he was taking responsibility for his offending behaviour, and the assessment of the Community Corrections officer is that part of the reason for his offending was the escalation of his drug use up until the time of the offence, and some issues in relation to his marriage. It is suggested by Community Corrections that his use of drugs would be a particular matter to be targeted when he is released from custody. 23. The psychologist's report gives a far more details account of the upbringing of the prisoner. Again it is supported by the account given by the prisoner's mother, although it provides a great many more details as far as dates of travel to Australia and return to Vietnam and the like. 24. It is to be pointed out that the prisoner lived in Australia from his first arrival here in 1999 until 2005. He returned to Vietnam for four years, during which time he, as I said, married the woman who is now his wife, who I take from all the material to be a person he met in Australia. Then he returned to Australia in 2009 and has permanent residency. 25. He told the psychologist that he had reasonably regular employment, working as a packer in a factory, and was employed by Toll, a transport company. Learned Senior Counsel for the prisoner, through his solicitor, provided to the Court informally a great deal of material, some of which has not been actually tendered in this Court. Part of that material was notification of the prisoner's membership of a superannuation fund that was transport based. I have taken that to be evidence that confirms his previous employment in the transport industry. Also, the tax return material confirms his employment as a shop assistant at a newsagency in the period of time between November 2011 and his arrest in June 2013. 26. I turn away from the psychological report for one moment to point out that I have a reference from that employer who confirms that employment, and also speaks of the prisoner's industry and reliability whilst working for him, the shock of his arrest in relation to this matter, and the willingness of that employer to continue his employment on his release to custody. That material, in addition to the other material that I sighted that was not formally tendered, gives support to the proposition advanced by his counsel, which I accept, that the prisoner's role in this matter was not that of a distributor of methylamphetamine, but an internal courier. 27. To get back to the psychologist's report, though, ultimately, in the context of no significant medical history, no significant history of mental disorder or mental illness, although some history of drug use and dependency, the psychologist concluded that the prisoner had some symptoms of anxiety that were consistent with his stress at being in custody and awaiting sentence. He had no symptoms of a major depressive disorder, mania, psychosis or post traumatic stress. He had not struggled with anger management or attempted or considered suicide. 28. Although no psychometric testing was undertaken, on clinical examination he was thought to be of average intelligence and there was no notable psychopathology or personality dysfunction. He thought that the prisoner's interpersonal style was a key contributor to his offending. 29. There was some instability in his domestic circumstances, as I pointed out, at the time of the offending and substance use by him which, in the opinion of the psychologist, had likely disinhibited him and affected his judgment to some extent. He said in summary, Mr Nguyen's interpersonal style and substance use seem to be at the crux of his offending, but additional factors including associating with antisocial associates, marital discord and housing instability at the time of the offending are identified as risk factors. He is a generally prosocial individual both in personality and history, and it was recommended that on his release from custody he should engage in a community based treatment with a forensic psychologist. He will also need assistance in relation to monitoring his peer connections and also matters relating to his family relationships. 30. There is nothing in this material that speaks of a mental illness or a disorder that might warrant consideration of those principles summarised by the former Chief Judge of the Common Law Division of the Supreme Court, McClellan J, in the decision of the Court of Criminal Appeal of De La Rosa [2010] NSWCCA 194. 31. With regard to the sentencing of Mr Birnie, of course as I said, that is a matter of significance, as was made clear in the very helpful submissions of Senior Counsel for the prisoner. It provides a very strong reference point, bearing in mind the two offenders are being sentenced in relation to the same offence, although with different aspects of culpability to be considered. 32. In the judgment I gave in relation to Mr Birnie, I went through a number of authorities that were brought to my attention by Mr Boulten SC who appeared for Mr Birnie, and my analysis of those judgments appears at [44] [53]. I adopt that analysis here that I undertook of those cases. 33. The decision of Buttrose, to which I referred in that judgment, particularly at [44] [46] of that judgment [2011] NSWCCA 35, involves an examination again by McClellan CJ at CL, in his usual helpful way as was undertaken by him in De La Rosa, of a range of comparative cases, all involving criminality of course far more significant than the criminality of this matter, if that could be said, bearing in mind, if one looks at one aspect, that is the quantity of drugs that were involved in the various cases discussed in Buttrose. 34. What is clear from reading Buttrose and the analysis undertaken by the learned Chief Judge in the context of the need to have regard to Pt 4 Div 1A, as I found in relation to Mr Birnie, is the fact that, given the role of this prisoner, allowing for all the other objective factors, this offending was below that of the middle range of objective seriousness. As I say, the helpful analysis of McClellan J in Buttrose demonstrates that to be clearly so. 35. I am also very mindful of what I discussed in Birnie, where there was a standard non-parole period, to have regard to s 54A(2) and s 54B(2) of the Act, the amended sections in Pt 4 Div 1A following upon the High Court judgment in Muldrock. The current legislation emphasises the need to ensure that the standard non-parole period is not of determinative significance in the sentencing exercise, but one of a number of factors that are required to be considered, particularly in the context of the principles set out by the High Court in the decision of Markarian (2005) 228 CLR 357 at [51] per McHugh J, discussed in greater detail of course in Muldrock v R (2011) 244 CLR 120. This I do. 36. The other authorities that I was taken to today are of course not of the same power as the persuasive comparative sentencing authorities to which I have otherwise referred, particularly the judgment cited in the judgment of Birnie. One is reminded of the remark of Roden J when he was on the Supreme Court, having brought to his attention a judgment of his own when he was a Judge of the District Court, saying to the Queen's Counsel appearing before him, who I think is the same Queen's Counsel as in this matter, "But Mr James, why should I be bound by the reasoning of a mere District Court judge?" 37. But one of the judgments I was referred to is the decision of HL involving sentencing an offender for a greater objective criminality than here, but which included an offence very similar to the offence with which I am concerned. In that matter, it is to be fairly said that the sentence imposed for that offender for the relevant offence had to be considered in the context of the need to accumulate a sentence for a more serious Commonwealth offence. Thus the line that may be drawn between the appropriate non-parole period and the like is not quite as persuasive. 38. I have also read the judgment of Judge Payne in the decision of Nghe involving, as I would understand it, a co accused of HL. Those judgments of course are helpful and I have taken them into account in the assessment of this matter. 39. I am required to have regard to s 3A Crimes (Sentencing Procedure) Act as I pointed out in the case of Mr Birnie, as applies here, aspects of the purposes of sentencing that arise for consideration here are the need for the prisoner to be adequately punished and to deter him and others from committing similar offences. In fact, one might think, in sentencing offenders involved in the supply of large commercial quantities of prohibited drugs, that that aspect of the purposes of sentencing is a constant presence. I need to promote the rehabilitation of the offender and make him accountable for his actions, to denounce his conduct. There is no particular harm done to any particular victim in this matter because of the intervention of the authorities, for which they must be commended. 40. I do not believe there is a need to give particular weight to protecting the community from the offender. I do not regard him as a danger to the community, although of course it might fairly be said that the conduct in which he engaged, albeit at the level at which he did participate in this criminal enterprise, had the potential for harm to the community. 41. That brings me to s 21A Crimes (Sentencing Procedure) Act. The Crown very helpfully sought to bring to my attention an aspect of the supply of prohibited drugs, particularly in particular levels of purity, that is, the risk to the safety of the community, if I might use that expression, as reflecting an aggravating factor, more eloquently identified in s 21A(2). The particular authority to which the learned Crown prosecutor took me was not an authority that I was drawn to in the case of Birnie. If it had relevance it would have had equal relevance to Mr Birnie's situation. However, in the scheme of things, as I discussed with the learned Crown, the reference to it by the learned Crown was not particularly pressed. 42. We discussed the practicalities, that I know as a sentencing judge from seeing many, many of these cases on almost a weekly basis in sentencing exercises, knowing that the drugs of this high purity would most likely be significantly cut, that is, reduced in purity to increase the volume of the quantity of the drug to maximise the profit that would be ultimately realised. 43. Of course, I am fully aware of the role this prisoner plays in allowing that to occur, and the risk to the community by the use of these drugs is to be borne in mind but I do not conclude this as an aggravating factor particularly against this offender. We here as judges are all the time dealing with people committing crimes, some of dishonesty, some of violence, that have their genesis in many respects in the use of, or the addiction to, or the abuse of, prohibited drugs like crystal methylamphetamine. It must be understood that one of the reasons that the legislature has provided for penalties such as maximum penalties of life imprisonment for the particular crime for which this offender admits his guilt, is because of the recognised damage to the community that we see on a daily basis here in this Court, with sad consequences for victims and for prisoners themselves, whose lives are irretrievably ruined by their addiction to these pernicious substances. 44. Ultimately, such observations as I made about aggravating factors in this criminality in relation to Mr Birnie are pertinent to this particular prisoner. It is to be fairly said, as I believe I analysed in Mr Birnie's matter, really the facts of the case that speak of their own aggravations and matters that might tempt one to make an adverse finding against the prisoner are very much integral to the character of this type of offending, recognised by the legislature with the maximum penalties that are appropriate. It thus is the fact in such cases, by and large, except for people that can be legitimately identified as planners and principles, that additional aggravating factors that might be permitted to be found under s 21A(2) are not necessary to be identified because the offending itself speaks of its own seriousness. 45. So far as mitigating factors are concerned, obviously there was ultimately no injury, emotional harm, loss or damage, other than the cost to the community of the investigation, which is not to be forgotten. I accept that the prisoner does not have any significant record of previous convictions. I am prepared to accept the prisoner was a person of good character. I am prepared to accept that the salutary lesson that he has learned from his arrest means he is unlikely to reoffend and that he has good prospects of rehabilitation. 46. I accept that he has expressed remorse and taken responsibility for his actions. His plea of guilty is a mitigating factor. I accept that there was co operation with the authority or assistance in a general sense, as identified by his counsel, but it is not the type of assistance of course that should lead to any discrete discount. The only discrete discount to which the prisoner is clearly entitled is the discount for the utilitarian benefit of the plea of guilty. 47. In the context of the sentence I imposed upon Mr Birnie, I have concluded, having regard to the relevant objective features of this matter and the subjective features of this prisoner, as were considered obviously in the fixing of the appropriate sentence for the co accused, that the starting point of any sentence I should impose for this prisoner should be eight years' imprisonment, in the context, of course, of giving proper weight as one must to the maximum penalty to be imposed for this offence when one is dealing with the worst category of this offence committed by the worst category of offender. That starting point is reduced by 25%. That means that the total sentence to be imposed is a total sentence of six years. 48. I have made a finding that there are special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. These special circumstances include in this matter the need for an extended period of supervision to enable the prisoner to adjust to community living. He needs assistance, as the psychologist and the Community Corrections officer identified, in respect of counselling against drug use. It is clear from the greater detail of the psychologist's report that he needs assistance in relation to the maintenance of his domestic relationships, and he will need direction, it seems to me, in respect of his associates. 49. The sub-text of this matter, that is, the prisoner's association with other offenders, is not entirely clear. It must be fairly said the prisoner has not made that entirely clear by some of his obfuscation when he was interviewed by the police, but I would be concerned that he would receive at least some direction to avoid the "anti-social" contacts that are referred to in the psychologist's report. 50. I earlier indicated when I gave an indication to the prisoner of the sentence that was to be imposed, immediately after hearing the last of the submissions and not taking time to go off the bench, that the non-parole period in relation to this prisoner should be three years and four months. I have given that matter some consideration as I have been working my way through the material. Admittedly much of it, in the context of the submissions made by the parties, obviously fresh. Perhaps the judge should give himself or herself at least 15 minutes to reflect upon these matters every time. I have concluded that I should fix a non-parole period of three years and three months rather than the three years and four months that I foreshadowed, to enable the prisoner to have a period of supervision of two years and nine months. In my view, that period is the appropriate period for which the prisoner, in the context of the total sentence to be imposed, should have the benefit of Community Corrections supervision. Could you stand up please, sir? 51. In relation to the offence to which you pleaded guilty you are convicted. You are sentence to a term of imprisonment by way of non-parole period of three years and three months, to commence on 5 June 2013 and to expire on 4 September 2016. In relation to that sentence I impose a balance of sentence of two years and nine months which will expire on 4 June 2019. It will be a matter for the Parole Authority whether you will be released to parole, but if you are of good behaviour in custody, it is likely you will be released to parole at the expiry of your non-parole period. You can take a seat, thank you. 52. I do not propose to fix any conditions of parole. I think the Parole Authority with, hopefully, the benefit of my judgment when it is revised, and the assistance of course of Community Corrections, will be better placed than I to fix particular conditions of parole at that particular time. 53. In relation to this matter concerning the certificate pursuant to s 166 Criminal Procedure Act 1986, I exercise the powers available under s 167 of that Act to dismiss the charge, possess prohibited drug, reflected in H54288581/2 which I take to be sequence 2. Is that convenient, Mr Crown? 54. FINLAY: Thank you very much, your Honour. 55. JAMES: I think your Honour's made the drug destruction order. 56. HIS HONOUR: I did make the destruction order so I would not forget it, but I order again to give it greater emphasis that the drugs that were seized be destroyed. I probably did that when Mr Birnie was sentenced, too. But they can be destroyed a second time if that is humanly possible. 57. JAMES: Your Honour - it's the second time or third time ..(not transcribable).. 58. HIS HONOUR: Thank you very much Mr Crown for your assistance. That judgment that you referred to from the bar table, would you be able to provide me with a copy of that if I may see it? 59. FINLAY: You can have this copy, your Honour. Yes, certainly. 60. HIS HONOUR: I adverted to it in my judgment of course. I was just going to put on the record its citation, out of deference to the fact that it was raised. This is R v Shi [2004] NSWCCA 135, and may I keep the judgment if I may? 61. FINLAY: You certainly can, your Honour. 62. HIS HONOUR: Anything else from you Mr James? 63. JAMES: No, if your Honour pleases. 64. HIS HONOUR: Mr Interpreter, could you tell Mr Nguyen that the total sentence I have imposed is six years' imprisonment, the non-parole period is three years and three months imprisonment, and those orders, those sentences, which are intimately connected, commence from the time that the prisoner came into custody, 5 June 2013. Could you tell the prisoner, I cannot direct that he be released to parole at the end of the non-parole period. His release to parole will be dependent upon the Parole Authority. I have taken into account his good behaviour in custody, and if he remains industrious and of good behaviour in custody, it is likely that he will be released to parole at the expiry of the non-parole period. Given the character of the offence, he would not be required to undertake any special courses, such as a sexual offender, before he was released to parole. Can you ask the prisoner if he understands what I've said? 65. SPEAKER: Yes, I do. ******** 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: 09 October 2015