Director of Public Prosecutions (Cth) v Nguyen
[2025] VCC 1045
•25 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01036
| THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| HUNG NGUYEN |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October and 24 April 2025 | |
DATE OF SENTENCE: | 25 July 2025 | |
CASE MAY BE CITED AS: | DPP (Cth) v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1045 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Attempt to possess a commercial quantity of an unlawfully imported border controlled drug – Traffick in a large commercial quantity of drugs of dependence – Senior directing role in the criminal hierarchy – Grave offending – Plea of guilty following a sentence indication hearing – History of substance abuse – History of mental illness – Socially disadvantaged background – No genuine remorse – Verdins principle 5 engaged – Delay a mitigating circumstance – Family hardship a mitigating circumstance – Serious drug offender on Charge 2 – Parity
Legislation Cited: Sentencing Act 1991 (Vic) – Crimes Act 1914 (Cth) – Judiciary Act 1903 (Cth)
Cases Cited:R v Cooper (1998) 103 A Crim R 51 – R v Verdins (2007) 16 VR 269 – Bugmy v The Queen (2013) 249 CLR 571 – Marrah v The Queen [2014] VSCA 119 – Sabbatucci v The Queen [2021] VSCA 340 – DPP v Herrmann [2021] VSCA 160 – R v Edwards (1996) 90 A Crim R 510 – Markovic v The Queen (2010) 30 VR 589 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – Hili v The Queen (2010) 242 CLR 520
Sentence: Total effective sentence of 22 years and 6 months’ imprisonment with an overall non-parole period of 15 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A Sprague | Mark de Crespigny Commonwealth Solicitor for Public Prosecutions |
| For the Accused | Mr D Cronin Mr R Nathwami KC | Papa Hughes Lawyers JLE Lawyers |
HIS HONOUR:
1Hung Nguyen, you have pleaded guilty to an indictment containing one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (Charge 1)[1] and one charge of traffick in a large commercial quantity of drugs of dependence (Charge 2).[2] The maximum penalties for both of these offences is life imprisonment.[3]
[1] Contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth) (‘CC’).
[2] Contrary to s 71(1) of the Drugs, Poisons & Controlled Substances Act (‘DPCSA’).
[3] Pursuant to ss 11.1 and 307.5(1) of the CC and s 71(1) of the DPCSA.
The facts
2The prosecution filed a summary of prosecution opening for plea dated 17 March 2025,[4] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[4] Exhibit (‘Ex’) P1.
3You and your co-accused Channara Thong, Hien Pham, Justin Barnett and Benjamin Wilson were involved with a consignment containing a commercial quantity of methamphetamine. The consignment was unlawfully imported into Australia by Barnett and Wilson and was intercepted and substituted by police before it came into your possession.
4The prosecutor summarised your role to include overseeing and directing Pham and Thong in their various activities and providing physical assistance with the consignment where necessary (Charge 1). I will describe your role in further detail later in my reasons.
5An extensive array of material and equipment for the processing and trafficking of drugs of dependence was later found at your house along with large quantities of cocaine and methamphetamine (Charge 2).
Background – events prior to your involvement
6On 17 December 2022, International Cargo Express, a logistics provider, received a submission relating to a new importation described as a consignment of ‘Canola Oil’ to be shipped from Vancouver to Melbourne.
7In Vancouver on 20 January 2022, the Canadian Border Services Agency intercepted the consignment, which was in a shipping container with 18 pallets of ‘Sunfrie Canola Oil’. Each pallet contained 60 17.3 litre jugs. Presumptive testing identified the jugs in three of the pallets (180 jugs in total) contained liquid methamphetamine weighing approximately 2,907kg. The remaining 15 pallets contained canola oil.
8The methamphetamine was seized in Canada and the Royal Canadian Mounted Police reconstructed the entire consignment with legitimate canola oil before shipping the consignment to Melbourne.
9Australian authorities later analysed the seized liquid to confirm the presence of methamphetamine. The minimum net weight of liquid present was 2,743.6kg with a calculated minimum purity of 22.9%. The minimum total pure weight of methamphetamine in the three relevant pallets was 629kg.
10On 26 February 2023, Barnett and Wilson arranged to ‘start operations’ the next day.
11On 1 March 2023, the substituted consignment arrived in Melbourne. On 2 March 2023, the Australian Federal Police (‘AFP’) reconstructed the consignment a second time, placing an inert substance in the jugs of the three relevant pallets, with the remaining still containing canola oil.
12Between 2 March and 10 March 2023, Barnett and Wilson facilitated the delivery of the consignment from Port Melbourne to Norman Carriers, a freight storage facility in Laverton. Between 13 March and 6 April 2023, Barnett and Wilson arranged the on-delivery of the substituted consignment. As a result, on 16 March 2023, the consignment was relocated from Norman Carriers to Bayside Storage, a facility in Moorabbin.
Your initial involvement
13On 26 April 2023, four men attended ‘StoreLocal’, a storage facility in Sunshine. After inspecting the facility, a storage booking was made. One of the men entered ‘Richard Nguyen’ as a secondary contact for the booking. The prosecution case is that man was you.
14At 3:28pm on 18 May 2023, Barnett arranged for the 16 pallets at Bayside Storage to be transported to AP Trading in Sunshine.
15Between 3:46pm and 4:51pm, you and Pham had four phone conversations. You also made four calls to Pham, which were unanswered. At 4:30pm, you messaged Pham saying, ‘take off Monday / and be up early please’.
16At 9:19pm, Barnett advised Bayside Storage that the pallets would be collected by ‘TT Trading Pty’ and the driver’s name was ‘Hien [Pham]’.
17You called Pham at 12:53pm on 20 May 2023. You then exchanged messages between 8:13pm and 8:33pm regarding the collection of the consignment.
Delivery and unloading of the consignment at StoreLocal
18Between 8:10am and 8:14am on 22 May 2023, you and Pham exchanged messages via an encrypted messaging service in which you instructed Pham about the collection of the consignment. Pham acknowledged each of your instructions.
19From 8:17am to 8:43am further text messages were sent between you and Pham and Pham and a person named ‘Dharni’, who was a truck driver.
20At 8:35am, the truck was observed driving to Bayside storage. Pham got in the car and entered the driveway. Pham sent you an image of the storage facility. Between 8:36am and 8:42am, you and Pham exchanged text messages in which you instructed him to first go into the office as they would tell him what to do. You also requested Pham take a picture, which he did, and you explained the pick-up instructions once more.
21Between 8:52am and 8:59am, you told Pham to confirm when the consignment was being loaded and to photograph it. Pham told you the facility was bringing up the container for the ‘other truck’. He sent you an image of a shipping container being loaded onto a sideloader trailer.
22At 9:05am, you asked if Pham was ‘going in yet’. Pham replied saying he thought they should wait because the ‘guy seemed bothered’. You instructed Pham to wait until the truck had left before going in, and asked for a picture of the truck. Pham sent you another image of the sideloader trailer. You and Pham discussed the repositioning of the trailer needing and you said he could pick up the consignment afterwards.
23You and Pham exchanged further messages, in which you reiterated your instructions. At 9:10am, Pham confirmed the truck was still there and sent you another image of the trailer. You instructed Pham to ‘go in and ask again’.
24The loading of the consignment commenced at 9:29am, as observed by police surveillance.
25Between 9:29am and 9:49am, you and Pham exchanged more messages. Pham sent you an image of a forklift loading cargo, described by Pham as canola oil, into a trailer, and an image of part of the consignment. You asked Pham if the other pallets all looked the same. Pham replied with an image of several pallets of the consignment loaded onto the trailer.
26You asked Pham to let you know when they were ‘on the road’. Pham then confirmed the loading of the consignment had been completed and thanked you for your help.
27At 9:52am, you and Pham had another text conversation. You told Pham you had to ‘sort it out and shit’ and start ‘cooking that shit’, which the prosecution alleged related to the need to separate the methamphetamine from the legitimate canola oil and the manufacturing of the marketable form of methamphetamine. You also told Pham you would ‘give [him] the 2k’ when you saw him later, and referred to him as your ‘bro’. Your conversation continued until 10:00am. You encouraged Pham to ‘keep [his] head down’ and ‘kick it with [his] misses’ and said, ‘I told you patience with mW [sic] and I’ll get you work bro’.
28In relation to the delivery of the consignment, you messaged Pham saying it took ‘three months of planning’ and told him he picked up ‘350kg of crack bro’.
29Police surveillance observed the consignment was fully loaded at 10:00am.
Delivery of consignment to StoreLocal Sunshine
30The prosecution case is that you made a phone call on 22 May 2023 advising StoreLocal that 16 pallets were enroute and forklift assistance was required.
31At 10:04am, you messaged Pham instructions to go to the StoreLocal office and wait for a worker to provide a forklift to unload the pallets. You also told Pham you would bring a pallet jack. At 10:51am, you asked Pham for his ‘ETA’ and repeated your instructions.
32At 11:19am, you, Thong and another man named Huang attended StoreLocal in a Nissan Navara, from which you unloaded a pallet jack, a wheeled device used to lift and move pallets.
33At 11:26am, Pham attended StoreLocal and in accordance with your instructions, requested forklift assistance to move the consignment. A few minutes later, Pham messaged you with an update. You told him the ‘other two guys’, whom the prosecution say were Thong and Huang, were already at the storage unit.
Unloading the consignment at StoreLocal
34At 11:30am, the truck arrived at StoreLocal.
35At 11:36am, Pham messaged you saying, ‘we opened it’. You instructed him to meet the ‘other two boys’.
36At 11:43am, Pham and Dharni opened the side curtains of the truck’s trailer and commenced unloading the consignment. One of the pallets collapsed, causing boxes from the consignment to fall to the ground. A few minutes later you messaged Pham asking if he was ‘all good’ and requested a picture when the boxes were all in the storage unit.
37At 11:49am, Pham opened the roller door to the loading dock, where he met Thong and Huang. StoreLocal staff provided them with a second pallet jack. From 11:57am to 1:10pm, Thong, Huang and Pham unloaded the pallets into Unit 720.
38While the pallets were being unloaded, you Facetimed Pham several times and exchanged text messages about their progress. At 12:39pm, you attended StoreLocal and assisted to convey the ninth pallet from the consignment into Unit 720. You left at 12:43pm, leaving Huang, Thong and Pham to unload the remainder of the consignment.
39At 1:18pm, the truck departed StoreLocal.
40At 1:28pm, CCTV recorded you returning to StoreLocal in the Nissan and entering Unit 720 carrying a set of scales. You messaged Pham at 1:52pm and said: ‘All good my bro / I’ll hit you up when we finished cooking’. You exited StoreLocal at 1:55pm.
41You attended a Woolworths store and purchased items including a black marker, gloves, kitchen scissors and a reusable jute shopping bag. At 2:16pm you returned to the StoreLocal loading dock where you met Thong. You gave Thong the shopping bag. Thong re-entered Unit 720 and closed the door. You departed.
42Between approximately 2:21pm to 3:28pm, Thong and Huang marked the weights of the individual boxes that had been substituted using the provisions you supplied. Thong and Huang left Unit 720 carrying one jug from the consignment and were observed by CCTV being picked up by you.
43At 8:26pm, Thong, Pham and Huang returned to StoreLocal carrying plastic bags. The prosecution case was that separately, at 9:12pm, you left your residence, drove to a vacant block, and emptied the contents of the vehicle’s tray onto the ground. You departed at 9:25pm. Police attended the vacant block and found numerous items such as plastic containers, metal tins and glassware. Police further observed vaporising liquids and a heavy chemical smell coming from the dumped material.
44At 9:00am on 23 May 2023, AFP and Victoria Police members seized various items from the vacant block, including plastic bottles containing liquid, diesel cans containing liquid, ammonia and hydrochloric acid bottles, plastic nozzles, decanted liquids and glass jars modified with holes and containing an unknown substance.
Critical events of 24 May 2023 to 30 May 2023
45On 24 May 2023, you purchased a black 15-litre container from a pool supplies store. You then purchased four 4l bottles of Diggers acetone cleaning solvent from Bunnings Warehouse.
46On the afternoon of 25 May 2023, you and Pham arranged to meet at StoreLocal. You urged Pham to not park far away as this would look suspicious. You and Pham exchanged photographs of food packets and containers that evening. It is alleged these items contained illicit substances.
47On 27 May 2023 at approximately 5:30pm, Pham attended Unit 720 for several minutes and messaged you to ask whether he should find the ‘chemical one’. Pham left the unit with one jug from the consignment and drove away.
48On 28 May 2023 at 10:30pm, you messaged Pham asking for a picture of the container he ‘put the stuff in’. On 29 May 2023, you were seen collecting Thong and Huang from a Braybrook shopping centre before returning to your house. You were observed that evening attending a Bunnings Warehouse to speak to staff about a Makita vacuum pump.
49On 30 May 2023 at 1:30pm, you and Pham exchanged text messages about the purchase of ‘chemicals’ from Melbourne Solvents in Hallam. You provided Pham with instructions and a list of items to purchase, as well as a promise of reimbursement. You told Pham he would be ‘flat out working’. At 4:00pm, you rang Melbourne Solvents and indicated your desire to purchase hydrochloric acid, acetone and ethanol. You advised your ‘little brother’ would attend to collect the products. Afterwards, you and Pham exchanged a series of calls and text messages in relation to this purchase. You instructed Pham to drop the items off to someone named ‘Andy’.
50At 6:56pm, after purchasing the requested items from Melbourne Solvents, Pham attended an address in Kealba and transferred the items to a Honda Accord registered in the name of ‘Andy Huynh’. Later that evening, you drove to Kealba and retrieved the items. You rang Andy and confirmed the purchase was accounted for. You then returned home.
Critical events of 31 May 2023 to 11 June 2023
51On 31 May 2023 at 4:43pm, you attended a Total Tools store in Sunshine North to purchase a Makita vacuum pump and battery. The prosecution case is that you returned the pump and claimed an equipment fault. The technician who examined the pump then became very ill and police consider the technician likely ingested substances during the examination.
52That evening, you messaged an unknown Facebook user and attempted to sell 14 pallets of canola oil.
53Between 6 June 2023 and 11 June 2023, it was alleged you exchanged messages and phone calls with associates such as Pham and Huynh regarding proposed money laundering activities and trafficking in illicit substances.
Search warrants and arrests
54At 5:00 am on 14 June 2023, police executed a series of search warrants. You and Thong were located at your residence in Sunshine North and were arrested. Police discovered a clandestine laboratory in the garage, in which elevated volatile organic compound levels were detected.
55Police seized approximately 67 items from the residence all consistent with the operation of a laboratory and which would be suitable for the recrystallisation of methamphetamine. The seized items included glassware, plastic containers filled with acids or other decanted liquids and solids, filter paper, gas stoves and burners, pH test strips, fans and dehumidifiers.
56The seized items also included an insulated vessel labelled ‘Nespresso’ which contained liquid and solid components. The decanted liquid component was found to contain methamphetamine and water.
57After processing the clandestine laboratory, police seized additional drugs and other items and glassware believed to be used in drug manufacturing. Substances later tested were found to be 9.717kg of pure cocaine and 287.6g of pure methamphetamine.
58You and Thong were taken to AFP headquarters and subsequently interviewed. You admitted your particulars but otherwise made no comment.
Search of Unit 720 at StoreLocal
59The remainder of the consignment – 120 containers of substituted material, less the one removed by Pham on 27 May 2023 – was located at StoreLocal and seized, along with other pallets containing canola oil.
60The quantity of drugs which you and your co-accused attempted to possess was 419kg of pure methamphetamine in approximately 1,829kg of liquid. This was two-thirds of the total quantity in the consignment (629kg pure in the 180 containers on three pallets).
Offence seriousness
61Attempting to possess a commercial quantity of a border controlled drug and trafficking in a large commercial quantity of drugs of dependence are very serious criminal offences, as indicated by their maximum penalties of life imprisonment. This shows, unambiguously, how seriously the community, through the legislature, views the conduct you have committed in Charges 1 and 2.
62The Victorian Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance.[5] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[6] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[7]
[5] See eg DPP (Cth) v KMD [2015] VSCA 255 [36] (‘KMD’), [64] (Maxwell P, Weinberg and Beach JJA); DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[6] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); KMD 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[7] Gregory 8 [24].
63It is also relevant for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence such as methamphetamine and cocaine.[8]
[8] R v Pidoto and O’Dea (2006) 14 VR 269, [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237, [56] (Nettle JA).
64So far as Charge 1 is concerned, you attempted to possess a very large quantity of methamphetamine. The consignment contained 419kg of pure methamphetamine, which is 558 times the commercial quantity threshold for that drug of 0.75kg.
65Charge 2, again, relates to a very large quantity of cocaine and methamphetamine seized. In aggregate, the quantity contained 13.47 times the relevant large commercial quantity threshold for pure quantities.
66So far as Charge 1 is concerned, the prosecutor submitted your role in committing that offence was managerial and there is no evidence you were acting under direction. Although the related accused, Barnett and Wilson, attempted to import the drugs into Australia, the prosecutor categorised you as being at the apex of the ‘downstream syndicate’.
67Your counsel accepted there is no evidence of you receiving instructions from anybody else, but rejected the prosecutor’s submission that you are at the ‘top’ of the syndicate. It was submitted on your behalf that there must be someone ‘in between’ you and Barnett and Wilson because there is no evidence of you contacting them or vice versa, for example, in relation to the purchasing of drugs or payment. Your counsel submitted it is unusual for someone at the top of the hierarchy to be involved with the ‘riskier’ aspects of the trafficking operation like you were, such as the unloading of the consignment.
68Although there is no evidence before me of your precise place in the criminal hierarchy, I accept, based on the facts presented by the prosecutor, your downstream syndicate is not directly comparable to the syndicate Barnett and Wilson were part of, as they were involved in the initial retrieval, storage and distribution of the total consignment imported.
69Considering your syndicate separately, I find you had the senior directing role. The prosecution opening was agreed to by you. In the absence of any evidence at all, I cannot make a finding in your favour that some unknown person was above you in the syndicate and directing you.
70You instructed Thong and Pham and had extensive and constant communication with Pham in particular. Your contact details were provided for the StoreLocal booking and it was you who arranged for Pham to assist with the collection. Moreover, the clandestine laboratory was set up at your house. You oversaw, and at times physically assisted with, the unloading of the consignment into the storage unit. Your role was much more supervisory when compared to your co-offenders.
71So far as Charge 2 is concerned, trafficking in a large commercial quantity of a drug of dependence is a standard sentence offence with a standard sentence of imprisonment for 16 years being fixed.[9] Accordingly, in sentencing you for that offence, I must have regard to the standard sentence[10] which ‘is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’.[11] This is a matter I must have regard to as one of the factors relevant to the sentence I impose on you.[12] However, the standard sentence is just another factor to consider, it is not determinative and does not affect the operation of my instinctive synthesis.[13] In fact, the relevant legislation specifically approves the instinctive synthesis approach to sentencing.[14] The standard sentence is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[15]
[9] DPCSA s 71(2).
[10] Sentencing Act 1991 s 5(2)(ab) (‘SA’).
[11] Ibid s 5A(1)(b).
[12] Ibid s 5B(2)(a).
[13] Brown v The Queen (2019) 59 VR 462, 464 [4], (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).
[14] SA s 5B(3)(b).
[15] Brown 464 [4], 479 [55]–[57] (applying Muldrock v The Queen (2011) 244 CLR 120, 132 [27] ((French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
72The quantities relevant to charges 1 and 2 support the prosecutor’s submission that I can draw the inference you were motivated by financial gain. However, I recognise there is no evidence you acquired significant wealth from the offending conduct or that you were engaging in a grandiose lifestyle.
73In my opinion, both charges before me are grave examples of very serious offences. Your moral culpability is very high. Clearly, denunciation, general deterrence and just punishment must all be given very significant weight in sentencing you.
Personal circumstances
Family background
74You were assessed on 29 August and 12 September 2024 by Alison Mynard, a clinical psychologist engaged by your legal representatives. Ms Mynard prepared a psychological assessment report dated 23 September 2024, which summarises your personal circumstances.[16]
[16] Ex D2.
75You were born in Australia in June 1994 and are currently 31 years old. Your parents are originally from Vietnam, arriving in Australia approximately a decade before you were born. You have a sister. You grew up in Sunshine and St Albans. Prior to being remanded you visited your paternal grandparents in Vietnam around twice a year for three weeks at a time.
76You recalled your parents argued frequently throughout your childhood, often resulting in your father throwing things at your mother. The fighting between your parents was mainly over you and worsened as you got older. Your father accused your mother of being ‘too easy’ on you, and you admitted to Ms Mynard that this made you feel like their relationship breakdown was your fault. You were frightened your father would hurt your mother and you just wanted your family to be ‘normal’. You would often sneak out of the house and use drugs as a means of escape.
77In 2020 your parents separated, which you say is ‘the best thing that could have happened’. Your father now lives in the United States of America with his new partner, whom you have no intention of talking to. Your mother has not re-partnered. You reported your mother initially visited you in prison weekly, but since your grandfather’s death, she now visits you once a month.
78Ms Mynard’s report indicates you have been traumatised and hurt by your father’s actions. You lack an emotional connection to him and wonder if he is capable of loving you. Your father came to visit you in custody, which you believe he only did out of a sense of duty. When you tried to hug your father, you felt no affection from him.
Education and employment history
79You attended Holy Eucharist Primary School in St Albans and Catholic Regional College until Year 10, when you were expelled for selling methamphetamines at school. You explained to Ms Mynard you ‘went clean’ for a while and undertook a four-year electrical apprenticeship. You are now a certified electrician.
Relationship history
80At the time you were remanded in custody you had been with your most recent partner for eighteen months. You allege the relationship ended because she was cheating on you.
81From a previous relationship you have a seven-year old son. You and his mother do not get along. You believe she neglects your son and instead focuses on the two children she has with other partners. You and your son’s mother were together for three years. You admitted to Ms Mynard you separated because of your substance abuse and erratic behaviour. You share a ‘good bond’ with your son because you spent time looking after him when he was younger. Your sister also has a close relationship with your son, for which you are very grateful.
82You told Ms Mynard you encounter difficulties in opening up to others. You have been very traumatised and hurt by your father’s neglect and have become emotionally inhibited. You are afraid of trusting someone and then being ‘burnt’ again.
Mental health
83Your difficulties with your mental health have been aggravated by several factors, including your exposure to family violence as a child and adolescent and losing custody of your son. You reported previously experiencing suicidal ideation and self-harm.
84Ms Mynard writes you have stayed at a psychiatric ward and attended a detox centre at Footscray Hospital for a two to three week period. At that time you were offered counselling, but you were resistant to treatment and refused to engage.
85You avoid talking about the past because of your belief, ‘when Asians tell a story about themselves, they lose face’. You continue to experience nightmares about your past. When you were in the community and engaging in substance abuse, which I will summarise later in my reasons, you were able to repress your memories. However, since being in custody, you think about everything that has happened to you and feel suicidal because you have let your family down. Ms Mynard reports you exhibit heightened anxiety when you talk or think about your past.
86Ms Mynard’s report highlights your strong feelings of shame. You blame yourself for being unable to protect your mother and sister. When you spoke about your upbringing you identified you still feel like there is something ‘wrong’ with you, and because you ‘lost face’ in your family, substance use was a way to take the problem away.
87You feel like you are merely surviving every day. You reported to Ms Mynard frequently feeling very angry and experiencing intense mood swings, which people have described to you as ‘hectic’. You often become irritable and agitated, and will only realise later how badly you turn on others.
88You also reported feelings of paranoia in the community, which you attribute to your crystal methamphetamine (‘ice’) use. You also believed the police were following you, listening to your mobile phone and watching you through your laptop camera.
89You shared with Ms Mynard one instance when you were at a friend’s house and their parents were arguing. You became very anxious and had a ‘bad feeling’ something negative would happen. You also had visual hallucinations and saw men jumping and running on wires. You could not sleep for a long time as you were ‘coming down’ from drugs. Occasionally you will hear voices ‘talking nonsense’, usually when you have been awake for over a week. You explained you are often confused and do not become aware of what has occurred until sometime later. For example, you recalled changing all the tyres on your mother’s car because you were convinced she was in danger, but later realised there was nothing wrong.
90Ms Mynard writes:
Mr Nguyen exhibited strong avoidant symptoms of C-PTSD. He does not talk about his past and he tries not to think about it or feel the uncomfortable emotion associated with his memories. He noted that he has put up a wall.
Most of the time, Mr Nguyen feels depressed. He reported withdrawing from others, lying in bed, with no energy…Mr Nguyen also reported that he feels ‘the full effect’ of his depression because he has no drugs to block it out now. Mr Nguyen explained that he feels helplessness and indecisive, knowing that he makes poor decisions…He noted that his social life and motivation to see others is very low. He has a low appetite, and he sleeps more, so he doesn’t think so much.
91Ms Mynard opines you reach the diagnostic criteria for post-traumatic stress disorder (PTSD). You were also assessed for complex PTSD (C-PTSD), given the long-term nature of your exposure to abuse and the abuse being in the context of your relationship with your father. Although it is unclear how you were assessed, Ms Mynard opines you meet all the diagnostic criteria for C-PTSD, namely re-experiencing the trauma, avoidance of trauma reminders, heightened sense of threat, emotional dysregulation, interpersonal difficulties and negative self-concept.
92In relation to your offending conduct, Ms Mynard writes:
In terms of the offending, acting in a way to find power, control and wealth in his life, was the ultimate way that Mr Nguyen sought to compensate for his traumatic childhood, where he felt weak, powerless and not in control of his life.
Substance use
93You have used drugs since your mid-adolescence. You first used methamphetamine to help you concentrate and work more efficiently, but in order to ease the discomfort of ‘coming down’, you also used Xanax and cannabis. You denied using ‘GHB’ and acknowledged you would sometimes use cocaine at parties during the weekend.
94Initially you would smoke about a gram of ice each day, starting in the morning. You attempted to stop on several occasions, but could not follow through because ‘ice’ assisted in managing your mood swings. Your use of that drug was frequent from the ages of 17 to 25 years. From 25 to 29 years of age, your usage became intermittent.
95When using ‘ice’, you told Ms Mynard your mind was always busy and distracted. You started selling drugs to fund your own habit, but also said you used the money to help your mother and give yourself a place to stay in case your son came to live with you.
96Ms Mynard writes you did seek treatment on two occasions, at detox facilities in Ascot Vale and Richmond, but it is unclear how successful these programs were for you.
97You denied being a regular drinker of alcohol.
98In relation to the present offending, Ms Mynard opines:
At the time of the offending behaviour, Mr Nguyen had continued to suffer from complex PTSD and a drug addiction. His drug addiction has been fuelled by his ongoing mental health issues that have never been addressed. If Mr Nguyen can engage in therapy, he is more likely to recover from his traumatic history.
Mr Nguyen has overcompensated by using alcohol, methamphetamines and cannabis to bring a sense of confidence and strength to him.
99In her report Ms Mynard made the following diagnoses:
(a) Complex PTSD;
(b) Drug-induced psychosis (resolved currently in a controlled environment); and
(c) Stimulant use disorder.
100However, Ms Mynard does not specify the tests, if any, she administered in order to arrive at these diagnoses. She does refer to her administering the International Trauma Questionnaire (‘ITQ’) and the Paulhus Deception Scale (‘PDS’). The PDS measures the tendency of a person to give socially desirable answers and self-deception enhancement, to allow for a lack of insight associated with an unconscious bias in self-reporting. Apparently, you scored in average ranges for impression management and for the self-deception scale, indicating to Ms Mynard that you were being honest in your responses. You did not reach cut off scores to indicate any concerns about impression management or self-deceptive enhancement.
101In her report, Ms Mynard does not explain how her administration of the ITQ informs her diagnoses. Presumably, much of her discussion of what she describes as being your ‘traumatic past’ was informed by the answers you gave in the ITQ.
102Moreover, Ms Mynard does not state how long her assessments lasted, however, I note there were two interviews conducted via video link. Ms Mynard apparently did not speak to any of your family members to confirm any aspects of your self-reported history, including your admissions to detox facilities and the history of family violence. She notes you are not currently on medication for your mental health.
103It appears, you were diagnosed with stimulant use disorder on the basis of your self-report of your level of illicit drug use in the past.
Criminal history
104Your criminal history encompasses offences largely irrelevant to the current offending. Notably, your criminal history does not include any drug-related offences.
105On 14 August 2014, you were convicted and sentenced to a two-year Community Correction Order (CCO) in relation to arson and criminal damage offences in the Melbourne County Court. You breached the CCO twice; on 17 February 2016 the order was confirmed and extended to 13 August 2016, and on 29 September 2016 the order was cancelled and you were convicted and fined $4000.
106In the past you have been sentenced in relation to several offences, including contravening a family violence interim intervention order, unlawful assault, theft of a motor vehicle and a number of driving related offences.
Character references
107At the plea hearing, your counsel tendered character references written by your mother,[17] aunt,[18] younger sister,[19] brother-in-law[20] and a childhood friend.[21] The letters describe you as an understanding, loving, respectful and protective family member. Your sister, mother and aunt reference your marriage breakdown as a life event that has taken the biggest toll on your mental health. As your sister writes, you ‘went down a very dark path and did not think about the consequences of [your] actions’. Your loved ones share the belief your offending behaviour is not congruent with who you really are, and all firmly believe you are capable of rehabilitation.
[17] Ex D3.
[18] Ex D6.
[19] Ex D5.
[20] Ex D4.
[21] Ex D7.
Mitigating circumstances
108You pleaded guilty to the present charges on 14 February 2025 following a sentence indication hearing held on 9 October 2024.
109Your pleas of guilty have significant utilitarian benefit and indicate an acceptance by you of responsibility of your offending conduct. They also indicate a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
110I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
111As Winneke P observed in R v Cooper:[22]
[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [himself].[23]
[22] (1998) 103 A Crim R 51 (‘Cooper’).
[23] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
112True remorse is a question of fact and is determined on the balance of probabilities.[24] An offender must satisfy the court there is ‘genuine penitence and contrition and a desire to atone’.[25] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[26]
[24] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[25] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[26] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
113Your mother, sister, aunt, brother-in-law and childhood friend, in their character references,[27] say you exhibit remorse and talk to them about the regret you feel about the moments leading up to your arrest.
[27] Ex D3–D7.
114I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this is having, and will continue to have, on you and your family. I am also prepared to allow that you are slowly gaining some insight into the seriousness of your offending conduct and its causes. However, on the material before me I cannot find you fall into that category of offender who:
… pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience…[28]
Application of Verdins principles
[28] Phillips v The Queen (2012) 37 VR 594, 621 [101] (Harper JA); CD v The Queen [2020] VSCA 95 [36] (Harper JA, Buchanan JA agreeing).
115Your counsel submitted Verdins principles 5 and 6 are engaged in your case.[29] In relation to both principles, your counsel primarily relied on Ms Mynard’s diagnosis of C-PTSD, which she opines was present at the time of the assessment and would continue to be present unless you engaged in treatment.
[29] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
116I am prepared to give limited weight to Verdins principle 5 in your case. Accepting Ms Mynard’s diagnosis at face value, given you suffer C-PTSD it is likely the sentences I impose will weigh more heavily on you to some extent than they would on a prisoner in normal health. However, the extent to which problems will arise, and their severity if they do, is unclear. I note you have been in custody now for over two years. Ms Maynard does not refer to any difficulties you are suffering as a result of your mental conditions. In fact, your drug-induced psychosis is ‘resolved currently in a controlled environment’. So far as your stimulant use disorder is concerned, you have engaged in therapeutic drug and alcohol treatment whilst in custody[30] appear to be drug-free.[31]
[30] See letter from Donna Chandler dated 20 April 2024 (Ex D9).
[31] See negative urine sample assay results (Ex D10).
117I am not satisfied Verdins principle 6 is engaged in your case. That principle requires there be ‘a serious risk of imprisonment having a significant adverse effect on the offender’s mental health’ for this consideration ‘to mitigate punishment’.[32] Ms Mynard does not appear to form a concluded view in her report regarding the impact imprisonment is having on your mental health, besides a brief comment about you reporting suicidal thoughts. In my view, there is limited evidence about the significant adverse effect imprisonment has on your mental health. You also seem to be making the most of your situation in custody. You have recently been promoted to a supervisory position as kitchen billet.
Application of Bugmy principles
[32] Verdins 276 [32(6)] (emphasis added).
118Your counsel submitted the general principles adumbrated by the High Court of Australia in Bugmy v The Queen (‘Bugmy’)[33] are engaged in your case.
[33] (2013) 249 CLR 571 (‘Bugmy’).
119In Marrah v The Queen (‘Marrah’),[34] Redlich and Tate JJA affirmed the relevance of a disadvantaged background when their Honours observed:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[35]
[34] [2014] VSCA 119 (‘Marrah’).
[35] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–89 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
120Importantly, their Honours observed that when sentencing an offender the court should not consider an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[36] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[37]
[36] Ibid.
[37] Ibid.
121In Sabbatucci v The Queen,[38] the Victorian Court of Appeal explained the principles in Bugmy as follows:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[39]
[38] [2021] VSCA 340 (‘Sabbatucci’).
[39] Ibid [6] (Maxwell P and Emerton JA). See also Newton (a pseudonym) v The King [2023] VSCA 22 [36]–[38] (Beach and Macaulay JJA).
122In DPP v Herrmann,[40] that Court further observed:
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[41]
[40] [2021] VSCA 160.
[41] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
123In applying Bugmy principles in this case I do not need to find the disadvantage you suffered as a child was ‘profound’. In Sabbatucci, the Court also said the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[42] Coming to this conclusion does not depend on the Court being satisfied the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[43]
[42] Sabbatucci [22].
[43] Ibid.
124Your self-report to Ms Mynard and your counsel’s submissions illustrate your childhood was marred by domestic violence and trauma. However, as I put to your counsel at the plea hearing, the character references tendered on your behalf paint a very different picture. In your aunt’s letter,[44] she writes your childhood was filled with ‘joy, innocence and happiness’. According to her, you were ‘well cared for and loved’ by your parents and you were always surrounded by support. It is a common theme across the character references by your mother,[45] sister[46] and aunt, that it is the breakdown of your marriage which led to your life ‘unravelling’, as opposed to any childhood deprivation. I acknowledge, however, your mother does reference her and your father often quarrelling, leading to you being, in her words, ‘traumatised and disappointed’.
[44] Ex D6.
[45] Ex D3.
[46] Ex D5.
125Taking your disclosures to Ms Mynard and your counsel’s submissions into account, together with the content of the letters, I consider the degree to which you suffered childhood trauma and deprivation has been exaggerated to some extent. Nonetheless, I am prepared to have some limited regard to Bugmy principles in sentencing you..
126Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability. Nonetheless, these complex factors mean I must moderate to a limited extent the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentences I impose on you. They also inform the weight I give to specific deterrence and protection of the community in your case, the latter principle being subject to the serious offender provisions of the Sentencing Act 1991 (Vic) (‘SA’) discussed later in these reasons.
Family and custodial hardship
127Your counsel submitted hardship has been suffered by you and your family whilst you have been in prison. When you were first remanded you were placed in an isolation cell. You were withdrawing from drugs and you were only able to leave your cell for one hour a day. Your counsel submitted you have found prison difficult, particularly as it is your first time in custody.
128Your counsel illustrated in written submissions[47] that I must also have regard to the probable effect any sentence would have on your family, and therefore the exceptional circumstances test[48] does not apply.[49]
[47] Ex D1.
[48] See Markovic v The Queen (2010) 30 VR 589 (‘Markovic’).
[49] Crimes Act 1914 (Cth) s 16A(2)(p).
129The New South Wales Court of Criminal Appeal in R v Edwards,[50] as quoted by the Victorian Court of Appeal in Markovic v The Queen (‘Markovic’)[51] opined:
There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed,…it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders…in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.[52]
[50] (1996) 90 A Crim R 510 (‘Edwards’).
[51] Markovic 591 [6] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
[52] Edwards 515 (Gleeson CJ).
130So far as Charge 2 is concerned, as outlined in Markovic, family hardship may be taken account in two ways:[53]
(a) In an exceptional case, where the focus is on the impact the sentence will have on the offender’s family members; and/or
(b) As a separate sentencing consideration, the effect on the offender of hardship caused to family members by their absence if imprisoned.
[53] Markovic 592-3 [10]; 595 [20]. See also Carabott v The King [2025] VSCA 118, [37] (Niall CJ and T Forrest JA).
131Your counsel’s submission in relation to the impact the sentence will have on your family members was limited, extending only to you not being able to care for your mother, as the primary male figure in your family, and their worry about you being in custody.
132In relation to the second principle in Markovic, the Court held:
The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the “exceptional circumstances” limitation.[54]
[54] Markovic 595 [20].
133While you have been in custody your grandfather passed away. This was challenging for you and has resulted in your mother visiting you less. You were unable to attend your sister’s wedding, which you found particularly upsetting because of your desire to be a present male figure for your family. As outlined by Ms Mynard and your counsel, you are very close to, and protective of, your mother. Your mother will continue to need care as she gets older. I acknowledge you are unable to look after her from prison and this has exacerbated the feelings of helplessness you felt as a child. I also acknowledge you are worried about not bonding with your son. He will grow up without a consistent fatherly presence and will be an adult by the time you are able to spend time with him outside of prison.
134I accept it must be difficult knowing you are incapable of looking after your family because you are in custody. I will take this effect on you into account in sentencing you on both charges. On Charge 1, I will also take into account the probable effect that the sentence I impose on you on that charge will have on your family.
Delay
135Your counsel submitted the effect of delay is a mitigating circumstance in your case. It has now been just over 2 years since you were arrested and charged in relation to these offences.
136There will always be some delay in prosecuting cases of this kind, but here there has been more than the usual delay. This is exemplified by the time between the sentence indication hearing on 9 October 2024, the plea hearing on 24 April 2025 and this matter being listed for sentence today. Some of that delay has been beyond your control, however there was a period of four months between the sentence indication hearing and you notifying my chambers via email of your acceptance of the sentence indication on 12 February 2025.
137The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[55] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[56]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[57]
[55] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[56] (2013) 40 VR 436.
[57] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
138So far as your rehabilitation during the period of delay is concerned, whilst on remand you have had the opportunity to abstain from the use of illicit substances and remediate your mental health conditions. Your counsel tendered a bundle of random urine drug screen assay results for the period of 10 September 2023 to 3 May 2024,[58] which indicate negative results. It is also much to your credit that you have used this time profitably.
[58] Ex D10.
139Your counsel also tendered a letter dated 30 April 2024 from Donna Chandler, AOD Counsellor at GEO Healthcare,[59] attesting to your involvement since August 2023 in individual counselling to explore your substance issues and offending behaviour. According to Ms Chandler, you have identified your triggers, developed a relapse prevention plan and have shown a strong commitment to self-improvement. At the time of Ms Chandler’s letter, you had completed all allocated individual sessions.
[59] Ex D9.
140Ms Mynard, in her report, opines you have some insight regarding the effects of the trauma on your life, and how this trauma has led you into drug use. She considers you would benefit from psychological interventions to increase your insight into your offending behaviour and reduce your risk of recidivism.
141I consider your lack of a relevant criminal history and the encouraging approach you have adopted to the time you have spent in custody, augers well for your future prospects of rehabilitation. Nonetheless, on balance, I assess your prospects of rehabilitation as being somewhat guarded. Much will depend on your ability to remain drug-free upon your release from custody and to continue to engage in substance abuse and psychological treatments.
142So far as delay akin to punishment is concerned, since you were arrested and charged in relation to these offences you have had the prospect of a very significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you significant stress and anxiety. I take these effects of delay into account in your favour.
Application of sentencing principles
143In sentencing you on Charge 1, I have had regard to the provisions of Part 1B, Division 2 of the Crimes Act 1914 (Cth) (‘the Commonwealth Act’), aspects of State sentencing laws as applied by the Judiciary Act 1903 (Cth) and common law principles where they continue to apply. I have had particular regard to ss 16A(1) and 16A(2) of the Commonwealth Act. In sentencing you on Charge 2, I have had regard to the provisions of the Sentencing Act 1991 (Vic) (‘SA’) and common law principles where they continue to apply.
144I have also had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic,[60] DPP (Vic) v Dalgliesh (a Pseudonym),[61] and Hili v The Queen[62] and the Victorian Court of Appeal decisions in DPP v Zhuang,[63] and DPP (Cth) v Thomas.[64] Specifically, I have considered the comparative cases provided by the prosecutor[65] and your counsel.[66]
[60] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[61] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[62] (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 71 [304].
[63] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[64] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[65] Ex P7.
[66] Ex D11.
145While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[67]
[67] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
146Moreover, it is always difficult to gauge more than a general yardstick from the so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
147The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them and your personal circumstances.
148In sentencing you for these crimes, I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
149As I observed earlier, I must give very significant weight to denunciation, general deterrence and just punishment in sentencing you for these crimes. Moreover, by reason of your status as a serious offender (see below), I must regard the protection of the community from you as the principal purpose for which the sentence on Charge 2 is imposed.[68] I do not consider I need give significant weight to specific deterrence in your case. No doubt your arrest and incarceration will have had the effect of deterring you from reoffending in the future, and that risk will be further reduced if your drug addiction and mental health conditions are properly treated whilst you are serving your sentence. Nonetheless, specific deterrence is not an entirely irrelevant sentencing consideration. As I earlier observed, I assess your prospects for rehabilitation as being somewhat guarded.
[68] SA s 6D(a).
Parity
150Parity is a relevant sentencing consideration in relation to Charge 1 in this case.[69] I have had regard to the sentences imposed on the related co-offenders Thong, Pham and Wilson, to the extent they are relevant to your circumstances. Barnett is awaiting a plea hearing listed on 31 July 2025 before another judge of this Court.
[69] See eg Collins v The Queen [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA).
151Thong’s sentence indication hearing was heard alongside yours on 9 October 2024. Following this hearing, Thong pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported,[70] and two charges of trafficking in a commercial quantity of a drug of dependence.[71] His plea was considered to be a forensically early plea of guilty.
[70] Contrary to s 11.1(1) and s 307.8(1) of the Criminal Code (Cth).
[71] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCSA’).
152On 28 February 2025, I sentenced Thong to a total effective sentence of 13 years’ imprisonment with a global non-parole period of 7 years and 10 months.[72] On Charge 1 he was sentenced to imprisonment for 8 years to commence at the expiration of the State non-parole period of 5 years. Thong’s involvement with the consignment was to assist in its unloading and recording on a single day for a period of about 4 hours and 20 minutes. At the end of this period, he left the storage area and removed a single container from the consignment, before returning later that day for a short time.
[72] DPP (Cth) v Channara Thong [2025] VCC 189R (‘Thong’) (Ex P9).
153On 27 June 2025, I sentenced Wilson in relation to one charge of attempting to possess a commercial quantity of a border controlled drug (Charge 1) to 17 years’ imprisonment with a Commonwealth non-parole period of 9 years and 4 months. A sentence of 18 months’ imprisonment on a State charge of possessing a drug of dependence (Charge 2)[73] was cumulated to the extent of 6 months. Wilson indicated an intention to plead guilty at a very early stage in the proceedings, at a committal mention held in the Magistrates’ Court on 5 June 2024.
[73] DPP (Cth) v Benjamin Wilson [2025] VCC 885 (Ex P10).
154Pham pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, particularised as being between 22 May and 27 May 2023 at Sunshine and other places in Victoria. Pham indicated he would plead guilty at a very early stage in the proceedings at an initial directions hearing held on 23 July 2024. He was sentenced by his Honour Judge Bayles on 24 September 2024 to a total effective sentence of six years’ imprisonment with a non-parole period of three years.[74] Pham was 19 years old at the time of the offending and 20 years old at the time of sentence. He was sentenced as a ’young offender’. He had no prior criminal history, and was sentenced on the basis that his involvement was under your direction. Given the differences in the offending and special sentencing considerations which apply to sentencing young offenders, I accept that Pham’s sentence is of little relevance in sentencing you.
[74] DPP (Cth) v Hein Pham (unreported, Judge Bayles, 28 February 2025) CR-24-01037 (Ex P8).
155It is also important to observe that Wilson and Barnett were involved in a syndicate separate from the downstream syndicate, which involved you, Thong and Pham. As I have previously observed, I do not accept the submission that your role was plainly much lower than Barnett‘s and Wilson’s. Because Barnett and Wilson were involved in a syndicate separate from yours, their roles are not directly comparable to yours. You played the senior managerial role in your syndicate. Pham was sentenced on the basis he was recruited and ‘directed by [you] at every step’.[75] Thong was sentenced on the basis you played a ‘much greater managerial role’.[76]
[75] Ibid [57]–[58].
[76] Thong [49].
156Once you are sentenced to a term of imprisonment on Charge 1, you fall to be sentenced on Charge 2 as a ‘serious offender’. When sentencing you, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. However, the prosecutor did not submit I should impose a sentence longer than that which is proportionate to the objective gravity of the relevant offence.[77]
[77] See SA s 6D.
157Moreover, section 6E of the SA provides:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
In this case, I will otherwise direct and, in effect, allow for a large measure of concurrency between the two sentences to reflect the overlapping, to some extent, nature of the offences and to avoid imposing a crushing sentence on you.
158Moreover, Charge 2 is a ‘serious drug offence’ for the purposes of SA s 89DI.[78] Accordingly, on conviction I must make an order declaring you to be a serious drug offender.[79]
[78] See SA s 89DI(2) and Confiscation Act 1997 (Vic) s 3(1) definition (a).
[79] See Dukic v The Queen [2021] VSCA 18, [46].
159As your counsel accepted, it is beyond argument that the only appropriate sentences on both charges must be sentences of imprisonment with a non-parole period being fixed on both the State and the Federal Charges.
Mr Nguyen
On Charge 1 (attempt to possess a commercial quantity of an unlawfully imported border controlled drug) you are convicted and sentenced to 15 years’ imprisonment to commence at the expiration of the State non-parole period.
On Charge 2 (traffick in a large commercial quantity of drugs of dependence) you are convicted and sentenced to 15 years’ imprisonment
In relation to the State sentence, I fix a period of 7 years and 6 months during which you are not eligible to be released on parole period.
It is my intention by my orders to fix a total effective sentence on both charges of imprisonment for 22 years and 6 months.
In relation to the Federal sentence, I fix a period of 8 years and 3 months during which you are not eligible to be released on parole.
It is my intention by my orders to fix an overall non-parole period of 15 years and 9 months.
I am required to state the reasons for imposing the sentence I have imposed on Charge 2.[80] They are contained in these reasons for sentence.
[80] See SA s 5B(4)(a).
I am required to state my reasons for imposing a non-parole period in relation to the sentence imposed on Charge 2 that is shorter than the period specified in SA s 11A(4)(c).[81] I consider that it is in the interests of justice to do so, having regard to the vagaries of Commonwealth sentencing law, and in order to give appropriate effect to the totality principle and to avoid the imposition of a crushing sentence on you.
[81] See SA s 5B(4)(b).
I am also required to explain how the sentence imposed on Charge 2 relates to the standard sentence of 16 years’ imprisonment which applies to that offence.[82] The sentence I have imposed on Charge 2 is 1 year less than the standard sentence.
[82] See SA s 5B(5).
I declare that on Charge 2 you have been sentenced as a serious offender and as a serious drug offender, and I direct those declarations be entered in the records of the court.
I declare 772 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
In accordance with s 6AAA of the Sentencing Act 1991 (Vic), I declare that but for your pleas of guilty, I would have sentenced you to an overall total effective sentence of 25 years’ imprisonment with a non-parole period of 17 years and 6 months.
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