Director of Public Prosecutions v Duong

[2025] ACTSC 14

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Duong
Citation:	[2025] ACTSC 14
Hearing Date:	31 January 2025
Decision Date:	5 February 2025
Before:	McWilliam J
Decision:	Offender sentenced to a term of imprisonment of 10 months and 15 days, backdated to 5 February 2024 to take account of the time spent in custody.
Catchwords:	CRIMINAL LAW – Judgment and Punishment – sentence – cultivate commercial quantity of controlled plant – offender in custody for 1 year prior to being sentenced – backdated
sentence of full-time custody imposed
Legislation Cited:	Criminal Code 2002 (ACT) s 616(3) Criminal Code Regulation 2005 (ACT) Sch 2 Crimes (Sentencing) Act 2005 (ACT) 7, 10(2), 33, 35, 63
Cases Cited:	DPP v Le [2024] ACTSC 31 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Can [2019] ACTSC 368 R v Ho [2019] ACTSC 41 R v Ho [2019] ACTSC 41 R v Krizaic [2021] ACTSC 147 R v Li; R v Jin [2014] ACTSC 304 R v Lindsay [2020] ACTCA 25 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Nguyen [2018] ACTSC 130 R v Nguyen [2018] ACTSC 130 R v Nikro [2015] ACTSC 231 R v Pham (unreported, ACT Supreme Court, Murrell CJ, 31 January 2014) R v Quan; R v Zhang [2014] ACTSC 385 R v Wong [2015] ACTSC 389 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	Director of Public Prosecutions (Prosecution)
Thi Tuyet Duong (Offender)
Representation:	Counsel
E Wren (ACT DPP)
E Chen (Offender)
Solicitors
ACT Director of Public Prosecutions (Prosecution)
Legal Aid
File Number:	SCC 241 of 2024
McWILLIAM J:
1․	The offender is before the court for sentence having pleaded guilty to one count of
cultivating a commercial quantity of a controlled plant (cannabis), with the intention of
selling any of the plants or believing that someone else intended to sell any of the plants
or their products. The conduct is contrary to s 616(3) of the Criminal Code 2002 (ACT).
The maximum penalty for the offence is 25 years imprisonment, a fine of $400,000 or
both.

Facts constituting the offence

2․	The sentence proceeded upon a statement of agreed facts. In summary, the offender
rented a property in Garran and modified the house to facilitate a sophisticated
hydroponic set up in each room. The offender and a co-offender were arrested on 5
February 2024 outside the property. Upon the execution of a search warrant, 141 plants
were recovered, along with gardening equipment which connected the DNA of the
offender to the growing of the cannabis crop and other paraphernalia associated with the
growing of cannabis. Surveillance imagery from a camera located at the front door of the
property showed the offender entering and exiting the property and taking the rubbish
out.

Court’s sentencing task

3․	The task of the Court is to sentence the offender by reference to the sentencing
objectives set out in s 7 of the Crimes (Sentencing) Act (Sentencing Act). These include
ensuring that the offender is “adequately punished” for the offence in a way that is “just
and appropriate”.
4․	The Court must achieve those objectives in accordance with the principle of
individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. The
mandatory relevant considerations are set out in s 33 of the Sentencing Act. These are
set out below. These have been considered below to the extent relevant in the
circumstances of this offender.
5․	A term of imprisonment is a sentence of last resort: s 10(2) of the Sentencing Act. It was
accepted that no sentence other than a term of imprisonment was warranted here. For
reasons that follow, I agree that the gravity of the offence means that no sentence other
than a term of imprisonment is appropriate, to give due weight to the objectives of making
the offender accountable for her actions, denouncing the conduct and general
deterrence.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

6․	The requirement to consider the nature and circumstances of the offence proceeds upon
a number of established principles.
7․	The sentence which the court imposes must be proportional to the objective seriousness
of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R
v Lindsay [2020] ACTCA 25 at [32]. The evaluation of the nature and circumstances of
the offence is “objective” in the sense that the Court does not consider matters personal
to the offender and determines the seriousness “wholly by reference to the nature of the
offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
8․	Subjective considerations, or matters personal to the offender, are separate
considerations under s 33(1)(m) of the Sentencing Act.
9․	The maximum penalty for an offence provides a yardstick against which to assess the
objective seriousness of the offences before the Court: Markarian v The Queen [2005]
HCA 25; 228 CLR 357 at [31]. The 25-year maximum penalty here reflects the potential
harm arising from the supply of drugs and the consequences that can flow from addiction:
R v Nguyen [2018] ACTSC 130 at [18].
10․	In R v Krizaic [2021] ACTSC 147 Murrell CJ discussed (at [25]) factors relevant to the
assessment of objective seriousness for cultivation offences, which include the following:

(a)	The role of the offender;
(b)	The offender’s motivation;
(c)	The number of plants being cultivated;
(d)	The sophistication of the operation; and
(e)	The duration of the offending.

11․	Here, the offender did not rent the house in which the crops were grown. Her role
included growing and tending to the plants inside the location, but the evidence did not
establish that she was at a level of masterminding the operation. The motive was plainly
profit although the evidence did not establish how much the offender was paid.
12․	The number of plants cultivated was 141 which falls at the lower end of the commercial
quantity range contemplated by the offence, which is between 100 and 1000 plants:
Criminal Code Regulation 2005 (ACT) schedule 2, item 8.
13․	The operation was sophisticated. It involved interruptions to the electricity at the house,
and internal modifications to the house. The prosecution here drew attention to DPP v Le [2024] ACTSC 31 (Le) at [31] where Taylor J referred to the fact that sophisticated
cultivation operations rely on the willingness of others to play their role, regardless of
how small a role it may be, or where they may sit on the hierarchy.
14․	Part of that sophistication involved the plants being grown indoors by enhanced means,
‘expediting the lifecycle of the plants and enabling a more rapid turnover’: a matter taken
into account in R v Pham (unreported, ACT Supreme Court, Murrell CJ, 31 January
2014).
15․	The offender’s counsel submitted that the offender was only being sentenced on the
basis of what was located in the house on one day. However, given the evidence of
sophistication and the camera footage identifying the offender on other days, it was
inevitable that the growing operation extended beyond a single day and that is relevant
to the objective seriousness of the offence.

Plea of guilty (s 35(3) of the Sentencing Act)

16․	The offender entered a plea of guilty after committal for trial. It was before the matter
was listed in the trial call-over to obtain a trial date. Taking into account the matters
required under s 35(2) of the Sentencing Act (discussed below), I consider there was
significant utilitarian value in the plea and will apply a 25% discount to the sentence to
be imposed.

Time in Custody

17․	The offender has been in custody since 5 February 2024. This has a significant effect
upon the overall sentence to be imposed here. The court has the power to direct that a
sentence of imprisonment is taken to have started on a day before the day that the
sentence is imposed: s 63 of the Sentencing Act.

Subjective Circumstances of the offending (s 33(1)(m) of the Sentencing Act)

18․	An intensive correction order assessment was before the Court. The offender is 54 years
old. She had an unremarkable childhood and completed her secondary schooling. Prior
to being taken into custody, she had employment and a positive attitude towards work.
She is in contact with her parents and was previously married. She has two children
who are now over 18 and living independently. She has a small group of close friends,
none of which appear to have been involved in criminal activities. She has no alcohol or
drug use issues and no apparent mental health difficulties
19․	Given all the above, her choice to become involved in commercial cultivation of cannabis
is confusing.

Remorse (s 33(1)(w) of the Sentencing Act)

20․	According to the report, the offender has not demonstrated any remorse and appears
not to have fully accepted her offending behaviour.

Victim Impact (s 33(1)(f) of the Sentencing Act)

21․	No victim impact statement was before the Court. That does not mean this is a victimless
crime. It is well documented that drug cultivation for supply has wide ranging
ramifications for the end users and the broader community, with significant resources
devoted to this health issue.

Antecedents or Criminal history (s 33(1)(m) of the Sentencing Act)

22․	I have taken the history into account in the manner described in Veen v The Queen (No
2) (1988) 164 CLR 465 at 477-8. The offender has no prior criminal history which entitles
her to a degree of leniency.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

23․	I have taken into account a number of cases by way of comparison to ensure consistency
in sentencing practice, accepting that the objective in doing so is not to bind the
sentencing court to achieve numerical equivalence with similar sentences imposed in
the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].
24․	The prosecution helpfully provided a table of comparable cases, which included cases
such as R v Can [2019] ACTSC 368; R v Ho [2019] ACTSC 41; R v Quan; R v Zhang
[2014] ACTSC 385, R v Li; R v Jin [2014] ACTSC 304, R v Nguyen [2018] ACTSC 130;
and Le (where the commercial operation spanned 6 properties with extensive hydroponic
setups and a combined total of 940 plants). A helpful summary of a number of those
authorities is contained in Le at [61]-[65], making it unnecessary to go into the same
detail here.
25․	The sentences imposed in those cases were between 18 months to three and a half
years (before taking pleas of guilty into account). Those cases all involved a greater
degree of criminality than that involved here, involving either rolled up counts or evidence
of profit or a role in the operation of a higher degree of moral culpability.
26․	The case that I found to be of most assistance in terms of comparability is R v Wong
[2015] ACTSC 389, where the quantity involved was 116 plants, the offender appeared
to care for the plants, had no prior history and was likely to be deported. A sentence of
11 months’ imprisonment was imposed and was suspended after 6 months upon the
offender entering into a 12-month good behaviour order.

Disposition

27․	It need hardly be said that cultivating large quantities of cannabis requires a sentence
that properly reflects denunciation of, and punishment for, the conduct: R v Nikro [2015]
ACTSC 231 at [36].
28․	In R v Ho [2019] ACTSC 41, Burns J referred to general deterrence as being given
prominence when sentencing for conduct of the kind under consideration here. His
Honour stated at [7]:

Those who set up grow houses such as these frequently attempt to distance themselves from the physical evidence of the offence by employing people, such as yourself, so that if the premises are located by the police, it is the caretaker who will be arrested and not them. It is the usual case that those who are, like yourself, employed as a caretaker are unwilling to name those who employed them, and as such general deterrence is a very significant sentencing consideration.

29․	Having regard to those objectives and the offender’s subjective circumstances, and
drawing from the comparable cases identified above, it is appropriate to impose a term
of imprisonment of 10 months and 15 days.
30․	As to the manner in which the sentence is to be served, the offender was assessed as
not suitable for an ICO as there was no stable accommodation proposed and thus an
ICO was deemed impractical. Given what I was told at the hearing about the offender
being extradited to face further charges in a different jurisdiction, I agree with the
assessment. A suspended sentence has also been largely overtaken by the fact that
the offender has spent such a significant period of time in custody.

Orders

31․ The orders of the Court are:

(1)	For the offence of cultivate a commercial quantity of controlled plant contrary
to s 616(3) of the Criminal Code 2002 (ACT), the offender is convicted and
sentenced to a term of imprisonment of 10 months and 15 days (reduced from
14 months on account of the guilty plea) to commence on 5 February 2024
and conclude on 19 December 2024.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam

Associate:

Date: