R v Nguyen [2019] NSWDC 174

District Court New South Wales

Medium Neutral Citation: R v Nguyen [2019] NSWDC 174 Hearing dates: 29 March 2019 Date of orders: 29 March 2019 Decision date: 29 March 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 6 years, with a non-parole period of 3 years: at [19]. Catchwords: SENTENCING – single Commonwealth offence – attempt to possess a marketable quantity of a border-controlled drug – cocaine – s 16BA schedule offences – guilty plea – good prospects of rehabilitation – parity Legislation Cited: Crimes Act 1914 (Cth) Cases Cited: Awad Nakhla v R [2011] NSWCCA 143 DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Nikolovska [2010] NSWCCA 169 R v Toeh Ban Joo [2018] VSCA 239 R v UE [2016] QCA 58 R v Xiao [2018] NSWCCA 4 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Anh Vu Nguyen (Offender) Representation: Mr Barrow (Crown)

Mr Shridhar (Offender) File Number(s): 2016/382799 Publication restriction: Nil

Judgment 1. The resolution of this sentencing exercise has been greatly facilitated by the very competent and efficient way in which counsel have prepared the matter, including the provision of comprehensive written submissions. The work that counsel have done has indicated that there is very little, if any, dispute between the Crown and Mr Shridhar, counsel for the offender, as to the way in which the sentencing process should be undertaken. 2. The offender has pleaded guilty at a relatively late stage, in circumstances which it is agreed attract a 10% discount on any term of imprisonment, to one count under s 307.6(1) of the Criminal Code (Cth), of attempt to possess a marketable quantity of a border-controlled drug, being 651 grams of cocaine between 28 June and 18 July 2016. The maximum penalty for this offence is 25 years imprisonment, which is, of course, a yardstick to be used in the sentencing process and indicates the way in which the legislature and the community regards such serious offending. 3. I will also take into account on a s 16BA schedule; two counts of trafficking a controlled drug, namely MDMA, which carries a maximum penalty of ten years imprisonment, both arising out of the finding of a small quantity of MDMA during a search of the offender's residence on 20 December 2016. Those offences will be taken into account, as is common ground, in a similar way in practical terms, to the way matters are dealt with for State offences, as suggested by the Chief Justice in the guideline judgment on Form 1 matters. 4. Mr Nguyen has been in custody since his arrest on 20 December 2016, a period of two years, three months and ten days. Mr Shridhar concedes, to use his words, some further period of custody is a must, it is only a question of how much longer, so it is unnecessary for me to consider any alternatives to full time imprisonment. 5. Mr Nguyen a good record, other than one charge of cultivate cannabis in relation to an offence in 2005 for which he was given a 15 month suspended sentence under s 12. He has otherwise been in regular employment and of good character. 6. The agreed facts demonstrate that Australian Federal Police investigated a crime syndicate who were using their position and knowledge as couriers within a company called Parcel Post Logistics (PPL), a delivery service contracted by Australia Post, to import and receive border-controlled drugs. Mr Nguyen's role included organising addresses as fleet manager for PPL, for the delivery and collection of drug consignments. The conduct, which is the subject of the principal count, occurred in mid-2016, although it was not an isolated aberration. Tinao, a delivery driver for PPL, who lived and worked predominantly in the Wollongong area. There are a number of references in the communications between the offender and Tinao referring to the offender as the "boss" indicating the working relationship between the Tinao and the offender. 7. There are some further preliminary facts agreed in relation to other consignments. The facts in relation to count 1 indicate that on 27 June while Tinao was making deliveries in the Wollongong area for PPL, Nguyen approached him and said "Tiny, I've got another parcel going to your house, will you be able to accept it?" and he said "Okay boss". A consignment was exported from Scottsdale, Arizona on 15 July 2016, and the airway bill showed Tinao's address at Shell Cove as the consignee. There were some items which had been cut to create a cavity inside a book and there was 1002 grams of compressed white powder which turned out to be 651 grams of 65% pure cocaine. 8. On 20 December 2016, when executing a search warrant at the offender's premises at Bonnyrigg, the offender told police that there was a small quantity of drugs in his room and showed them a bag containing 3.76 grams of pure MDMA. That is the subject of the first scheduled item, and another bag which found at premises at Cabramatta, which was his parent's family home, of 6 tablet consisting of 3.9 grams of MDMA. 9. The offender gave evidence today confirming histories contained in two expert reports, and I also have regard to his excellent custodial record over the period of two years and three months of remand. He has been employed as a sweeper, which is well-known to be a position of trust and seniority in the prison system, and he has for all intents and purposes been a model prisoner. He has also completed the RUSH program while in custody and the 12 Step program. 10. There was no challenge by the Crown in cross-examination as to the history set out in the psychologist's report. In short, Mr Nguyen was born in 1985, and is the second of six children. His family came to Australia from the Philippines when he was one year old. He said he had a tough upbringing in the Fairfield area. As the oldest male child he was subject to the most discipline and had significant responsibility in caring for his siblings. His parents were described as very supportive; he lived at home with them until he was 28. He met his current wife Jenny at the age of 28 and he has two children aged 11 and six. After an unsettled period following the end of school he worked in fairly regular employment for many years, working with Australia Post from the age of 30. 11. He described a history of alcohol consumption and MDMA use from the age of 14, until the time of his arrest. He had been using up to 12 tablets of MDMA at the time of his arrest. The offender was also using cocaine from the age of 21, and as is frequently the case, a gambling habit accompanied these addictions. It is likely that at the time of the offence he had a severe cocaine use disorder and a mild gambling disorder which directly influenced his decision-making process. 12. The second expert report is that of a toxicologist Dr Robinson, who was asked to opine on the drug-taking history to which I have referred. He expresses views as to the effects of cocaine and MDMA, which support the assertion that the offender was tolerant of the heavy pattern of use of cocaine and MDMA to which he has referred. 13. The sentencing process, of course, as the Crown points out in written submissions, must take into account the matters outlined in Part 1B of the Crimes Act 1914 (Cth), so that the Court ultimately must impose a sentence that is of a severity appropriate in all the circumstances of the offence. There is no dispute that his conduct in relation to the principal offence is a mid-level offence of attempted possession of cocaine, being 325 times the marketable quantity of a border-controlled drug. 14. Mr Shridhar acknowledged that it was a serious episode of offending. He acknowledges that he was recruited by those who bought drugs into the country and he asked Tinao, the courier driver, to pick up the drugs. He concedes that it was not an isolated occurrence, as the agreed facts demonstrate. His role was integral in getting the drugs to the intended recipient once they had arrived in Australia, but he did have, according to the evidence, no role in determining how they were to be smuggled into Australia or no knowledge as to the quantity or purity of the drugs or the origin of the drugs. His conduct was made possible by reason of his position as a trusted employee of PPL. As the Crown points out the weight of the drug is a relevant, but not a determinative factor. Here the offender's involvement in previous packages of drugs imported via the USA is outlined in the agreed facts and reflect his close involvement in the import organisation. Apart from the common-sense inference that there was a financial motivation for the offending there is evidence from the offender that his role was, in his expectation, to lead to him receiving his share of cocaine for his own personal use and there is no evidence of direct financial gain other than the alleviation of the need for the offender to pay for his own drug habit. 15. The offender has acknowledged his remorse and contrition by his evidence and he has acknowledged that his offending has caused harm to the general community and to his family. I will allow, as is common ground, a 10% discount for the fact that the plea assisted the administration of justice, as summarised recently by the Court of Criminal Appeal in R v Xiao [2018] NSWCCA 4. 16. General deterrence, of course, is a very significant factor to be taken into account so that the sentence signals to importers that any potential rewards are neutralised by the risk of severe punishment. It is common ground that involvement, at any level, in drug importation offences must attract a custodial sentence otherwise the purposes of general deterrence are not met. In particular this is because of the difficulty in detecting offending and the great social consequences that flow from the movement of illicit drugs into Australia. 17. As to his prospects of rehabilitation, the evidence establishes that the offender has addressed his drug use and has been drug free while in custody and he has completed the programs to which I have referred, and his prospects of continuing rehabilitation are excellent in my view. 18. I have been assisted by a review of a number of cases provided by the Crown, including R v Toeh Ban Joo [2018] VSCA 239, Awad Nakhla v R [2011] NSWCCA 143, R v Nikolovska [2010] NSWCCA 169, R v UE [2016] QCA 58 and the well-known case of DPP (Cth) v De La Rosa [2010] NSWCCA 194. The Crown, very properly, in my view, takes no issue with Mr Shridhar's position that R v Nikolovska [2010] NSWCCA 169 is perhaps the most relevant comparative, even though, as the authorities indicate, one does not look simply at the quantity of drugs or other objective or subjective factors for the purposes of comparing proposed sentences. However, the criminality involved in Nikolovska which led to a sentence of seven years and six months with a non-parole period of four years and nine months was significantly greater than that involved in the present case, including the fact that the offender there was to be paid $10,000 for her role in the importation and it extended over a significant period of time. 19. It is unnecessary for me to review the circumstances of the other cases which reference has been made, other than to note that the co-offender Mr Phanthavy was sentenced by her Honour Judge Girdham in December 2018 on two counts. When I say co-offender I mean an offender identified as a result of investigations into the employees of PPL. That offender was dealt with for two counts, one of importing 1578 grams of cocaine and the second of importing 2,000 grams of heroin, and the ultimate sentence imposed was seven years and three months with a non-parole period of four years and nine months after a 12.5% discount for the pleas of guilty. As Mr Shridhar accurately points out the significant differences between this offender and Mr Phanthavy. The case of Phanthavy is distinguished from the present case in the following ways: * the number of offences; Mr Phanthavy was sentenced for two offences; * a significant money laundering count dealt with on a s 16BA schedule involving $60,000; * entries in a ledger indicating numerous cocaine transactions; * the offences were committed for financial reward. * there were no efforts towards rehabilitation while in custody; * his significant record for drugs and gang related criminal activities; and * he was aware of the substantial amount of drugs involved in both charges and had knowledge of the overall operation. I accept Mr Shridhar's submission that they are factors which amply justify a significantly different sentence to be imposed in this case. In the light of those matters the orders that I make are: 1. The offender is convicted of the offence. 2. Taking into account the Schedule s 16BA matters, I impose a sentence of imprisonment of 6 years, to commence on 20 December 2016 and expiring on 19 December 2022. 3. I impose a non-parole period of 3 years, expiring on 19 December 2019. The offender is eligible for release to parole on that date. 4. In relation to sequence 008, the offender is convicted of the offence and pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further penalty is imposed. 5. Sequences 007 and 009 are withdrawn.