Director of Public Prosecutions v Duong
[2025] VCC 1406
•24 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00790
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUYET DUONG |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2025 | |
DATE OF SENTENCE: | 24 September 2025 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1406 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW- Sentencing
Catchwords: Cultivate commercial quantity of cannabis. Sophisticated hydroponic growing arrangements. 243 plants/135.43 kilograms. Untruthful and evasive record of interview. Absconded on bail. Subsequent conviction in ACT for similar offending while unlawfully at large. Vietnamese national. Plea of guilty. No prior convictions at time of offending. Utilitarian value in plea of guilty. Verdins not applied. Renzella discretion applied. Custodial hardship considered. Deterrence, denunciation, and just punishment. Parity. Parsimony. Deportation probable, but not punitive. Current sentencing practices. Good prospects of rehabilitation. Totality a significant consideration.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Duong [2025] ACTSC 14; DPP v Phuong (a pseudonym) [2023] VCC 1115; Guden v The Queen [2010] VSCA 196; R vPidoto & O’Dea (2006) 14 VR 269; Spiteri v The Queen (2011) 206 A Crim R 52; Gregory v The Queen (2017) 268 A Crim R 1; Nguyen v The Queen [2021] VSCA 211; Dang v The Queen [2020] VSCA 24; DPP v Dang [2022] VCC 1720; DPP v Lai [2020] VCC 1325; DPP v Nguyen [2020] VCC 767; Worboyes v The Queen [2021] VSCA 169; DPP v Tran [2021] VCC 101; Failla v The King [2025] VSCA 2025; R v Mezzaro [2015] VSC 528; DPP (Cth) v Omar [2019] VSCA 188; R v Verdins (2007) 16 VR 269; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 518; Morgan v The Queen (2013) 40 VR 32; Warwick v The Queen [2010] VSCA 166; R v Renzella [1997] 2 VR 88; R v Lowe (1984) 154 CLR 606; Power v The Queen (1974) 131 CLR 623.
Sentence: 2 years and 10 months with a NPP of 1 year and 8 months.
PSD:557 days.
s6AAA:4 years with a NPP of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett (plea) Ms D Shivakumar (sentence) | OPP |
| For the Accused | Mr C Tom (plea) Mr C Wareham (sentence) | VLA |
HIS HONOUR:
INTRODUCTION
1Tuyet Duong, you have pleaded guilty to cultivating a commercial quantity of cannabis between 26 July 2021 and 15 August 2021. The maximum penalty for this offence is 25 years' imprisonment.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s72A.
2This offence is a 'serious drug offence' within the meaning of the Sentencing Act 1991 (Vic). It is also a Category 2 offence pursuant to s5(2H) of the same Act, meaning that the court is required to impose a sentence of imprisonment, other than one combined with a CCO,[2] unless one of the circumstances set out in paragraphs (a) to (e) of s5(2H) of the Sentencing Act is established. No claim was made that such circumstances exist here.
[2] S. 5(2)H Sentencing Act 1991
3You are a middle-aged Vietnamese national with no support by way of family in Australia. You are experiencing social isolation in custody as a result. You have served 557 days, that is to say, just over 18 months, by way of pre-sentence detention for this matter,[3] but in the interim, served another substantial sentence for similar offending interstate. That offending occurred after you fled Victoria before your case could be finalised here.
[3] Namely from 15 August 2021 to 6 July 2022 and then from 5 February 2025 to 18 September 2025.
4In support of the plea, the attached material was relied on:
(a) Outline of submissions.[4]
(b) Report of Daniella Kocic dated 14 August 2025.[5]
(c) The sentencing remarks for your subsequent offending.[6]
(d) A table of comparative cases.[7]
[4]Exhibit 1; Outline of Submissions (with Amendments) dated 15 September 2025.
[5]Exhibit 2; Report of Daniella Kocic dated 14 August 2025.
[6]Exhibit 3; DPP v Duong [2025] ACTSC 14.
[7]Exhibit 4; Table of Cases.
5Your counsel conceded that deterrence, denunciation, and just punishment combine to require that a term of imprisonment with a non-parole period be fixed in this case. I will sentence you accordingly. My reasons follow.
OFFENDING[8]
[8]Taken from Exhibit A; Summary of Prosecution Opening for Plea (as amended) dated 17 September 2025.
The parties
6You were born in August 1970 and are now 55 years of age.
7Your co-accused in the matter is Aileen Phuong,[9] who was 28 at the time of offending.
[9]A pseudonym, consistent with the sentencing reasons of Judge Carlin in DPP v Phuong (a pseudonym) [2023] VCC 1115.
Overview
8You were involved in the cultivation of a commercial quantity of cannabis at 2/4 Geehi Way, Ravenhall. That is a warehouse located in an industrial area.
9During search warrants executed on 15 August 2021 by police at that warehouse, police located a total of 243 cannabis plants weighing 118.64 kilograms and 16.79 kilograms of dried cannabis flower, making the total cannabis located 135.43 kilograms. A commercial quantity of cannabis is 100 plants or 25 kilograms.
10That cannabis crop was growing in a sophisticated hydroponic set-up within the warehouse, with an electrical bypass installed.
11You, the co-accused, and a male (your then partner, it seems to be accepted) were observed by police exiting 2/4 Geehi Way and were arrested at that location. You were transported to the Sunshine police station where a record of interview took place. You were not honest in your account to police.
12At the time the search warrant was executed, a motor vehicle registered to Ms Phuong was also located within the warehouse. Keys to the warehouse were located on Ms Phuong at the time of her arrest.
13CCTV footage shows Ms Phuong’s vehicle attended the location from 22 June 2021.
14It was alleged that you were involved in the cultivation of cannabis between 26 July 2021 and 15 August 2021.[10]
[10]CCTV of attendance of you and Ms Phuong, Statement of Aileen Phuong, Notice of additional evidence dated 18 January 2023.
Offending itself
15At about 5.50 am on 15 August 2021, police from Sunshine received information that a burglary was taking place at 1/6 Geehi Way in Ravenhall.
16Four police members attended the address shortly after that, at approximately 5.54 am. Upon arrival at the address, the factory door was open. Two of the police officers attended the rear of the factory, while the other two entered the factory via the open front door.
17Upon entering the factory, police could smell cannabis. At this time, police observed a male walking towards them. That male attempted to flee via a roller door but was apprehended by police after a short foot chase. A further two males were located within the factory and detained. All three men were arrested and transported by other attending police to the Sunshine police station.
18At 6.57 am, Detective Sergeant Wallace was standing in the factory carpark and was on the phone to another member of police. He saw two females and a male walk from the area of 2/4 Geehi Way, Ravenhall. Wallace observed that the three people were behaving suspiciously. They refused to make eye- contact or look towards the police.
19Wallace said something similar to 'Stop, Police'. The three people then all started to run, heading out of the gate and turning left to run along Geehi Way. He yelled out 'Stop, Police' a further three times and also yelled to other police members that there were people running.
20Police members Mlodzik and Willey chased the three, with Willey catching and apprehending Ms Phuong in Geehi Way. The second female, subsequently identified as you, was charged and apprehended by officer Mlodzik nearby. The male was able to evade apprehension altogether.
21During a search of the co-accused's handbag, a driver's licence in the name of 'Aileen Phuong' was located.
22Inside your jacket, police located a set of keys and those keys were able to open both the door at 4/6 Geehi Way and 1/6 Geehi Way.
23You were searched and your handbag contained a bank card in the name of 'Tuyet Thi Duong' and $620 in cash.
24Inside of 2/4 Geehi Way, police observed eight makeshift tents, with cannabis plants growing in six of them. Each of the six rooms or tents was equipped with a hydroponic gardening system, consisting of artificial lights suspended from the ceiling and containing charcoal filters. Rooms designated five and six were set up as drying rooms for cannabis flower and contained a large makeshift table and an electric fan.
25The electrical supply to the warehouse had been tampered with and it was subsequently confirmed that there was an illegal electrical bypass system in place.
26There was also a makeshift sleeping area which included a mattress and a heater, along with a food preparation area.
27Also located were the following items:
(a) A Toyota Camry which had been registered to the accused;
(b) Fifteen cannabis plants weighing more than 30 kilograms growing in room 1;
(c) Fifteen cannabis plants weighing more than 26 kilograms growing in room 2;
(d) Fourteen cannabis plants weighing more than 23 kilograms in room 3;
(e) Fifteen cannabis plants weighing eight kilograms growing in room 4;
(f) 6.96 kilograms of dried cannabis flower in room 5;
(g) 8.96 kilograms of dried cannabis flower in room 6;
(h) One hundred and four cannabis plants weighing 7.48 kilograms in room 7;
(i) Thirty cannabis plants weighing more than 22 kilograms growing in room 8;
(j) Fifty cannabis plants weighing 164 grams growing in room 9;
(k) Seven hundred grams of dried Cannabis flower from a shelf on the back wall of the building; and
(l) Finally, 200 grams of dried cannabis flower from a shelf on the side wall of the building.
Arrest
28After your arrest, you were transported to the Sunshine police. At the station, police seized a telephone. No PIN was required to access that phone and it was examined by investigators.
Investigation
Phone
29Several messages were located on your phone and translated from Vietnamese to English.
30The handwritten notes appear to be lists of items that were required to set up and continue growing cannabis. They included items such as rope, tape, electrical clamps, black boxes, electric boards, buckets, soil, corrugated pipes, a list of door numbers and sizes, curtains, monster bud, and light bulbs.
31You had text communication with your co-accused.
32There are messages between you and another, where you are co-ordinating the attendance of other people at the factory.
CCTV
33Due to the placement of CCTV cameras, there was a clear view of the exterior of 2/4 Geehi Way. Footage was obtained for the period from 22 June 2021 to 15 August 2021. Ms Phuong’s car was seen attending the premises and both you and her were seen on occasion attending together. This evidence of your regular attendance at the factory is consistent with the way the Crown puts its case against you, the way that the indictment is framed, and is reflected in your plea.
Record of Interview
34You participated in an interview and the following largely misleading and dishonest answers were given:[11]
[11]Depositions p264 – 195.
(a) Q16. Tuyet, tell me how you've come to be in police custody today.
A: Well, today I was helping friends to collect the flowers.
(b) Q26: What was in the building where you were?
A: Cannabis plants.
(c) Q27 : How many cannabis plants were in that building?
A: I don't know
(d) Q28: When you say you don't know, is there - was there a couple of cannabis plants, lots? I'm not asking for an exact number.
A: I only trimmed the plants that I see.
(e) Q33 : How many times do you think you have been to this address where the plants are?
A: Today would be my first time.
(f) Q35 : So tell me, who were you with at this address?
A: I don't know who that person's name is.
(g) Q36: Can you describe how many people you were with?
A: Three.
(h) Q39 : Can you describe whether they were male or female?
A: Female.
(i) Q40: So how many females were you there with?
A : Two females.
(j) Q41:Two females. Okay and how do you know these females?
A : People just hired me to work there, so I just worked there. I don't know these people.
(k) Q42 :Can you explain to me how they hired you? How did you meet them?
A: Just people asked that, you know, like, do I want to work, I said, 'Yes', and that's it. You know. They pay me $200 a day
(l) Q43: $200 a day. And what did they pay you for? What was your job?
A: Trim, cut the flowers.
(m) Q44 : And when you say, 'Cut the flowers', what plants were the flowers on?
A: Yeah, they tell me, you know, like, I asked them what work, and they said, you know like, 'cut flowers on a farm' and, so that's what I thought I was doing, you know. It was the first time I'm working.
(n) Q46: Earlier you said the place you were at had cannabis plants. Are they the plants the flowers were on?
A: Yes, yes, just cut the flowers for them.
(o) Q47 : OK. And how long ago did they approach you to work for them?
A: It was the first time I'm doing it, so I didn't know anything.
(p) Q49 : How did they pay you?
A: Money, $200.
(q) Q50: Okay, so is that in cash?
A: Yes.
(r) Q51: And did they pay you before the work or after the work?
A: After the work.
(s) Q52 : Okay. Explain to me how they've paid you $200 a day but you're saying today was your first day?
A: Yes
(t) Q53: So you haven't done any work for them, you're saying?
A: No.
(u) Q59: How did you get to this place today?
A: They drove me there.
(v) From Q63 and following, you professed to not even know where you had lived for the previous two years.
(w) Q68 : What time did they pick you up today?
A: You know, they drove me. they picked me up and they drove me here last night, and I worked through last night.
(x) Q72 :So tell me what you did last night.
A Cut the flowers.
(y) Q79 : And how many hours do you think you worked overnight cutting flowers?
A: I don't know what - how many hours, you know. When I get tired I sleep, so I don't know how many hours.
(z) Q81: Okay. How many plants do you think you worked on?
A: I didn't take notice of the number of plants.
Co-accused statement
35The co-accused, Ms Aileen Phuong, made equally unconvincing, bordering on fanciful denials, but did ultimately provide a confessional statement on 28 November 2022. Mr Tom agrees that Ms Phuong’s statement contains an accurate reflection of your activities for the purpose of sentencing.
36Ms Phuong stated that she was asked to set up 2/4 Geehi Way, Ravenhall. She was asked to set up some boxes to make it look like a factory. This was done in order to cover up the rooms where the cannabis was growing. She worked there every day for approximately a month. She worked at the factory with two other people, one of them being you. Around July 2021, Adam[12] arrived with a small truck full of cannabis plants. Ms Phuong along with you, put the plants in the factory. She noted that most of the factory was full of cannabis plants. You would look after the smaller plants and Long (uncharged co-accused) would take care of the larger plants. Ms Phuong stated you had a key to the gate and the factory. Between July and your arrest, you all worked at the factory every day. You arrived between 5.30-6.30 am and would harvest the flowers and set up the drying room. The flowers were harvested twice during that time and all three of you had equal responsibility for the work.
[12] A pseudonym. Consistent with Judge Carlin’s reasons in DPP v Phuong (n 9).
37On 14 August 2021, Ms Phuong went to the factory at about 6 pm and arranged via text to meet you and Long at Bunnings. You all then travelled to the factory and remained there until your arrest on 15 August 2021.
38After running a contested committal in December 2021, then being granted bail in February 2022, her matter was set down for trial. It resolved in the end without the need for a jury trial. She had made the statement I just mentioned and was entitled to a significant reduction in her sentence because she undertook to give evidence against you in accordance with it. She was 20 years younger than you and had not re-offended. She was going to be deported, which was an additional punishment for her.
39Ms Phuong pleaded guilty and was sentenced by Judge Carlin of this court on 29 June 2023 for her role in this criminality and received a sentence of two years and two months with a non-parole period of one year and three months. The indictment,[13] summary of prosecution opening,[14] and sentencing remarks[15] in her case have all been exhibited. I have read them and considered them.
[13]Exhibit B – (Annexure A) Plea Indictment for Ms Phuong.
[14]Exhibit B – (Annexure B) Prosecution Opening for Plea for Ms Phuong.
[15]Exhibit B – (Annexure C) Sentencing Remarks of Judge Carlin.
POST OFFENCE
Case history
40At the time of this offending, you had no prior convictions. You absconded on bail awaiting determination of this matter, and re-offended interstate. The following table sets out how this offending and your other criminal activity in the Australian Capital Territory (ACT)[16] inter-relate:
[16]Shaded in this chart for simplicity.
Date Hearing Outcome 26 July 2021 –
15 Augus 2021Offending 16 August 2021 Filing Hearing at the Magistrates' Court Melbourne Listed for Committal mention 1 November 2021 Committal mention at the Magistrates' Court, Melbourne. Defence adjournment 10 December 2021 Committal mention at the Magistrates' Court, Melbourne. Adjourned for committal 12 May 2022 Committal Committed for trial 20 June 2022 Initial Direction Hearing at the County Court of Melbourne Adjourned 6 July 2022 Bail application Bail granted on conditions, including provision of
$20 000 surety27 July 2022 Further Direction Hearing at the County Court of Melbourne Listed for trial 19 October 2022 Bail variation – change of residential address Amended 27 January 2023 Directions Hearing Accused failed to attend, adjourned to allow accused time to attend 3 February 2023 Directions Hearing Accused failed to attend, warrant issued.
Trial date of 8 March 2023 vacated17 February 2023 Further Direction Hearing at the County Court of Melbourne Co-accused arraigned – entered a plea – listed for plea hearing 8 March 2023 Proposed trial date Vacated as accused absconded 16 June 2023 Application to forfeit surety Application granted.
Accused and surety failed to attend5 February 2024 ACT offending Remanded in custody 5 February 2025 ACT Supreme Court
PGC&S to 10 months and 15 days
To commence on 5 Feb 24 and conclude on 19 Dec 20246 February 2025 Mention Accused was extradited from ACT on 5 February 2025. Adjourned to allow accused opportunity to provide instructions. 21 February 2025 Directions Hearing Adjourned 29 April 2025 Directions Hearing Adjourned 20 May 2025 Directions Hearing Matter resolved, accused arraigned and matter listed for plea. 18 September 25 Plea of guilty 24 September 25 Sentence PSD is total 557 days.
Subsequent conviction
41I will deal with your subsequent offending now.
42After being bailed, I am told you secured work in St Albans in a restaurant.
43I struggle to accept your presence in the ACT as occurring in the rather benign way it was explained in Ms Kocic's report. That is to say, as a result of you being offered work in Canberra and just going there, before being asked to enter a property where cannabis was being cultivated.
44I consider you made a deliberate and calculated decision to flee. Even if legitimate work was available for you, you knew full well your obligations and responsibilities with respect to your conditional freedom here in answer to the serious charge I am dealing with. I am told that a friend of yours who put up a $20,000 surety did not even attend court when you also failed to appear.
45Thus, having absconded from your trial here,[17] you were convicted by way of plea of guilty on 5 February 2025 of cultivating a commercial quantity of a controlled plant, namely cannabis, with the intention of selling the plant or believing that someone else intended to sell any of the plants or products in Canberra.
[17]There is no separate related summary charge of fail to appear or commit offence on bail, but naturally the fact you absconded and re-offended is relevant in assessing your prospects.
46That offence occurred on 5 February 2024. You were found to be involved in the cultivation of yet another crop, this time a sophisticated home set-up where 141 plants were located. You were sentenced for a single day of offending, although contextually the crop had obviously been underway for some time.
47The judge who sentenced you in the ACT found you were not the renter of the house and that you grew and tended to the plants in the home. You were not the mastermind, but clearly profit-driven. How much you derived was unclear. The learned sentencing judge noted the following:[18]
…she has no alcohol or drug use issues and no apparent mental health difficulties Given all the above, her choice to become involved in commercial cultivation of cannabis is confusing.
[18]Exhibit 3; DPP v Duong [2025] ACTSC 14 at [18] and [19].
48You were sentenced to a term of imprisonment of 10 months and 15 days. You had served more time than that which I will deal with later, but were extradited more or less immediately to Victoria.
49It is accepted that specific deterrence is a relevant sentencing factor in this case given this subsequent conviction. Your time on remand in Victoria was not a sufficient disincentive to re-offend it seems.
PSD
50You were arrested on 15 August 2021 and granted bail on 6 July 2022, during which time you accrued 326 days' pre-sentence detention.
51You failed to appear at the County Court on 27 January 2023, and a warrant was issued for your arrest on 3 February that year.
52You were then arrested and remanded in the ACT for the offences I have just summarised.
53You were released from custody in the ACT and extradited to Victoria on 5 February 2025. The period of pre-sentence detention for your current remand is 231 days.
54So the total pre-sentence detention, excluding today, is 557 days or around 18 months.
MATTERS PERSONAL TO THE ACCUSED
Family
55You were born and raised in Vietnam. You are the eldest child in a sibship of three. You have two sisters.
56You were born and grew up during wartime in Vietnam. Your early life was difficult. Your family had limited means.
57Both of your parents were in the military, and you were raised by your grandmother until the war ended. During this period, your family experienced severe economic hardship, often going without food.
58Your father passed away in 2005 from stomach cancer, and your mother is alive and remains in Vietnam. She is 93 and you understandably worry about her.
59You married at the age of 20 and left the family home. You and your husband have two children, a son who is 31 and a daughter who is 33. Both of them still live in Vietnam. You are still married but have limited contact with your husband. You once had a farm about an hour out of Hanoi with your husband. When you were struggling financially, you moved to Australia for work. The farm eventually failed, and the bank moved in.
60Your husband has cancer and lives with your son.
61In Australia, you had re-partnered, it seems, with the unindicted co-offender in this matter. You were coy about his very existence in the record of interview, and evasive about him even with Ms Kocic.[19]
[19]Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [63]
62There is a lack of frankness about the offending, your role and involvement in it, and your relationship with co-offenders which troubles me. It makes it more difficult to find other matters in mitigation in your favour when those matters rely on me accepting your explanation of other matters in your life.
Education & Employment
63You completed the equivalent to Year 12 in Vietnam. As I said, you and your husband had a farm in Vietnam where you both worked.
64Prior to your arrival in Australia, the farm was not financially viable, and you and your husband were struggling to manage the debts secured against it.
65Upon arrival in Australia in 2018 to work, you worked on a farm picking vegetables in Leongatha and also in a restaurant in order to send money home.
66In 2020 the pandemic hit, and you lost your employment. That same year the mortgagee took the farm, and it was sold.
67You have been on a bridging visa. Although it is a matter for the Commonwealth government, I consider your deportation to Vietnam more or less inevitable. This does not represent a punishment of the kind contemplated in cases such a Guden.[20] Rather, it will be a relief for you to be home with family, and not as isolated as you are here.
Mental Health
[20] Guden v The Queen [2010] VSCA 196.
68You do not have a demonstrated history of poor mental health, as recently in the sentencing remarks in February 2025 in the ACT, there was no suggestion at all that your mental health was suffering.[21]
[21]See again Exhibit 3: DPP v Duong [2025] ACTSC 14 at [18] and [19].
69You underwent assessment with psychologist Ms Kocic on 31 July 2025. She administered the Depression Anxiety Stress Scale ('DASS'), a
21-item self-report questionnaire designed to measure an individual's experience of symptoms of depression, anxiety, and stress during the past week.70Ms Kocic said that you demonstrated limited insight into your mental health.
71You were unable to provide detailed descriptions of your purported depressive symptoms, specify their onset, or identify the stressors or circumstances under which they would occur.
72Despite this, somehow, your results indicated extremely severe depressive symptoms, extremely severe anxiety, and severe stress.[22]
[22] Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [73].
73Ms Kocic opined that 'there is evidence consistent with an Adjustment Disorder (AD) with Depressed Mood, with contributing factors including displacement, social isolation, and ongoing worry for your family's wellbeing.'[23]
[23] Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [87].
74To the extent that Ms Kocic's opinion is based on your self-report of symptoms, I would not accept it unless it was corroborated independently by a source more trustworthy than you.
Context to offending
75Mr Tom said the context to, but not excuse for, your offending is a follows.
76As a result of the COVID-19 pandemic, you found it extremely difficult to gain stable employment here. Your financial situation was dire and you were unable to return home to Vietnam. I am told you were sending money home, but it is not clear how much, nor how often.
77While on the face of it, such a reason seems logical and consistent with human frailty, I have to view it in the context of someone who was less than forthright about her role in this offending and still engages in minimisation about the offending.[24]
[24]Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [66].
78Ms Kocic says you still claim that you were merely of the belief you were cutting flowers in the factory for medicinal purposes for $200 per day and did not know that those plants were cannabis until you arrived at prison.[25] This is plainly nonsense and it is inconsistent with your plea.
MATTERS OF SENTENCING PRINCIPLE
[25]Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [57].
General principles regarding commercial drug trafficking and cultivation
79A commercial quantity of cannabis is prescribed to be 25 kilograms or 100 plants. You are charged with cultivation over a 21-day period of 243 plants and a total of 135 kilograms. In terms of weight, this is more than five times the commercial quantity and more than half a large commercial quantity, prescribed to be 250 kilograms or 1,000 plants.
80Plainly, cultivation of cannabis in not less than a commercial quantity is a serious offence, as indicated by the maximum penalty (25 years) and its status as a Category 2 offence.
81Drug offences are a substantial societal evil that cause significant societal harm and affect its most vulnerable members. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in many Australian jurisdictions. That much is inarguable.
82Your counsel concedes denunciation, just punishment and general deterrence are all relevant sentencing considerations for offending of this nature.
83The community has a justifiable expectation that such offending will be treated very seriously. The consequences for engaging in such serious criminality must be such that any like-minded members of the community who are contemplating behaving like this, or in a similar fashion, will pause to consider whether the potential rewards are worth the risk of being caught and punished.[26]
[26]You in particular need to fully understand that when you engage yourself in the risk vs reward calculus when contemplating engaging in serious drug offences that the price you will pay for your criminality will be so severe that the promise of reward is simply not worth it.
84In this State, there is a quantity-based sentencing regime according to weight of the substance and not the perceived hierarchy of harm[27] which informs the maximum penalty.
[27]R vPidoto & O’Dea (2006) 14 VR 269.
85Given the overlap between the two offences, when sentencing for a cultivation offence, a court may consider trafficking cases in assessing current sentencing practices.[28]
[28]Spiteri v The Queen (2011) 206 A Crim R 52.
86The Court of Appeal has said that as with quantity-based trafficking offences, 'the legislature has deliberately constructed a hierarchy of cultivation offences'; therefore, what was said in Gregory[29] and subsequent cases about the need for appropriate relativities between sentences for offences of different levels applies equally to cultivation offences.[30]
[29]Gregory v The Queen (2017) 268 A Crim R 1.
[30]Nguyen v The Queen [2021] VSCA 211.
87In Nguyen v The Queen[31], the Court of Appeal again emphasised the need for sentences for the offence of cultivation of a commercial quantity of Cannabis to increase. In that decision, the court confirmed that 'Factors relevant to assessing the seriousness of a particular cultivation offence include the offender's role, and the scale, sophistication, and duration of the cultivation activity. Because the offences are quantity-based, the quantity cultivated ordinarily will be a factor of critical importance.'
[31]Nguyen v The Queen [2021] VSCA 211.
88During the course of that appeal, that is Nguyen, the court was provided with a collection of comparative cases. In considering those cases, the court commented that 'there is such similarity between hydroponic cultivation operations that, very often, the only real point of differentiation between one case and another is the quantity cultivated. Put another way, the effect of a quantity-based scheme of cultivation offences is that, other things being equal, the greater the quantity cultivated, the more serious the offence.' [32]
[32]Nguyen v The Queen [2021] VSCA 211 at [37].
89To further assist the court, the appellant in that case provided the court with the Sentence Overview of Commercial Quantity Cases, produced by the Judicial College of Victoria in the Sentencing Manual. Of more than 50 cases contained in that overview, only 'very few cases' involved a quantity of cannabis exceeding five times the commercial quantity.
90After considering the cases and statistics provided, the court again reiterated its view that sentences for the offence of cultivation in a commercial quantity of cannabis needed to increase. Specifically the court stated (replicated in full):[33]
[I]t is clear that despite repeated indications from this Court that sentences for this offence needed to increase, sentencing practice has remained essentially unchanged. Concern was first expressed about the state of sentencing for CQ cultivation as long ago as 2006, in Director of Public Prosecutions v Duong, when the Director called for increased sentences given what was said to be the increased prevalence of offending of this kind. In 2010, in Nguyen v The Queen, the Court (Maxwell P, with whom Buchanan JA agreed) questioned the adequacy of current sentencing for the offence, in the light of the maximum penalty of 25 years' imprisonment, stating that this was 'a matter of the first importance'.
[33] Nguyen v The Queen [2021] VSCA 211 at [44].
Gravity of this offending
91In the terms of the gravity of this offending, the commercial quantity thresholds are 100 plants or 25 kilograms. At risk of repetition, your offending exceeded the number of plants by 143, and the total weight of cannabis was in excess of 135 kilograms.
92On a purely quantitative scale, your offending is certainly not at the lower end of seriousness for the offence. It certainly was not contended that it is in the low range.
93Whilst the weight or number of plants is, as I said, an important factor in assessing the seriousness of the offending, there are other factors that have relevance in the assessment of objective gravity:
(a) The offending did involve the use of sophisticated hydroponic sets-ups and electrical bypasses.
(b) The period of the offending is 21 days.
(c) You were there daily.
(d) The plants were grown at a premises dedicated to the growing of cannabis.
(e) You were one of three workers on ground level.
(f) Your role was to look after the plants and harvest them. You had an equal role to Ms Phuong.
(g) That being said, your role was an essential one, though not holding a more senior position within any discernible hierarchy.
(h) There is no suggestion you were involved in the financing, or operation, or securing the premises.
(i) You did not hold a more senior position or task within it.
(j) The level of enrichment you enjoyed or were promised is unknown.[34]
Comparable Cases
[34]And I say that because of the doubts I have already expressed about your account of the offending.
94The court must have regard to current sentencing practices and this is just one factor amongst many to be considered in reaching a just sentence.
95Comparative cases have limitations. Each case must turn on its own facts. Notwithstanding their inherent limitations, comparative cases can assist in assessing where a particular offence falls on the spectrum of offending.
96Mr Tom provided a summary table of comparable cases. The facts of those cases were compared with the instant offending orally at the hearing.
97The relevant cases are
(a) Dang v The Queen;[35]
(b) DPP v Dang;[36]
(c) DPP v Lai,[37]
(d) DPP v Nguyen;[38] and
(e) DPP v Tran.[39]
[35]Dang v The Queen [2020] VSCA 24.
[36]DPP v Dang [2022] VCC 1720.
[37]DPP v Lai [2020] VCC 1325.
[38]DPP v Nguyen [2020] VCC 1767.
[39]DPP v Tran [2021] VCC 101.
98Ms Duckett referred me to
(a) Faila v The King.[40]
[40]Failla v The King [2025] VSCA 2025.
99I had regard to the case collection more broadly provided by the Judicial College[41] and the Sentencing Snapshots[42] relevant to this offending to have a broader understanding or view of the sentencing practices in matters such as these.
[41]The extensive case collection at JCV 7.6.
[42]Sac Stats 293 in October 2024 and 271 in April 2022.
100They are instructive and informative but are only one matter I am required to consider. They certainly do not set the upper and lower limits of my discretion by operation of a de facto parity exercise by way of comparison.
101Mr Tom made the point that the use of other cases as a reference point is made all the harder because of the totality point that applies here, and not in many of the cases referred to. He submitted (and I accept) that the totality aspect means your case perhaps more closely aligns with the cases he referred me to, as I have to adjust the sentence I imposed here on you in order to conform with that principle.
Plea of Guilty
102A committal hearing took place on 12 May 2022 and you had four Police witnesses (including the informant) cross-examined. The matter was then booked in for trial.
103Whilst your plea was not at the earliest opportunity, it still has real and significant utilitarian value in saving the community the expense of a trial.
104By your plea you have accepted responsibility for the offending and have facilitated the course of justice and obviated the need for a trial.
105The timing and utility of your plea of guilty will be reflected in a demonstrable sentencing discount.[43]
[43] R v Mezzaro [2015] VSC 528 [19].
Custodial Hardship
106During your initial remand, you experienced a greater level of custodial hardship as a result of the COVID-19 restrictions that were in place.
107I have had regard to the way that fact is to be taken into account in your favour in reference to Worboyes v The Queen[44] not because your conduct of the case helped to relieve the strain on the justice system—but more so that the experience of prison was more burdensome due to increased stress on prisoners and their families and changes in custodial conditions.
[44]Worboyes v The Queen [2021] VSCA 169.
108You, for instance, were required to undergo a 14-day period in quarantine and then there were lengthy periods where you experienced being locked down yourself for 23 hours a day due to outbreaks within the prison.
109You were, and are, experiencing isolation. Due to the cost, you have a limited ability to speak to your family in Vietnam, and it will not be possible for them to visit you.
110You are culturally and linguistically diverse from other prisoners you are held with, which compounds your isolation.
111You are incarcerated in a foreign county, living amidst a foreign language and foreign culture, without the possibility of visits from friends or family. This imposes hardship above and beyond that normally endured by persons undergoing sentence.
112Separation from family, and social isolation, are matters which make imprisonment more burdensome, notwithstanding the fact that a person who makes a deliberate decision to commit an offence in a foreign country must be, to some extent, regarded as having assumed the risk of that outcome.[45]
[45] DPP (Cth) v Omar [2019] VSCA 188 at [15].
Verdins
113You do not, as I said, have a demonstrated history of poor mental health. You do though have a history of not being frank in interviews, and to the psychologist about the offending.
114Ms Kocic opines that:[46]
… imprisonment would likely weigh more heavily on [you] than a person without [your] conditions. In individuals with Adjustment Disorder and subsequent symptoms of depression and anxiety, there is a potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate her symptom profile and risk of decompensation.
[46] Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [93].
115She went on to note:[47]
… [your] lack of English skills would add to the burdensome nature of custody and [your] capacity to engage in vocational courses, individual and group treatment, and programs within the prison environment would be limited on this basis. Further, [you] may find it difficult to understand some instructions or directions, or to complete intensive psychoeducation programs, particularly if interpreter assistance is not available to [you] or if this is conducted within a large group where [you] cannot seek clarification easily.
[47] Exhibit 2; Report of Daniella Kocic dated 14 August 2025 at [95].
116Mr Tom submitted that limbs 5 & 6 referred to in Verdins[48] are relevant to the sentencing exercise.
[48] R v Verdins (2007) 16 VR 269.
117I repeat what I have said earlier about your purported poor mental health. To the extent that the evidentiary basis for such a finding relates substantially to your own self report, I would not accept it.
118I accept that there are truly human reasons why you may find prison hard (and I have summarised them already, above), but they are not matters, in my view, that enliven Verdins.
Prospects of Rehabilitation
119At the end of your sentence, you plan to return to Vietnam immediately. I note that this decision is very likely out of your hands.
120In circumstances where you will be back with your family, in your home environment, it is submitted (and I accept) that you have good prospects for reform.
Totality
121I refer to the sentence you have just completed in the ACT.
122In Mill v The Queen,[49] the appellant had engaged in offending in both Queensland and Victoria. He was sentenced to a term of imprisonment in Victoria. After completing that sentence, he was extradited to Queensland where he pleaded guilty to additional offending and was sentenced to a further term of imprisonment.
[49] Mill v The Queen (1988) 166 CLR 59 (‘Mill’).
123The High Court referred with approval to the New South Wales Court of Criminal Appeal's decision in R v Todd.[50] In Todd, the Court commented:[51]
…It would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences.[W]here there has been a lengthy postponement, due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[50] R v Todd [1982] 2 NSWLR 518 (‘Todd’).
[51] Ibid, 519-20 (emphasis added).
124The High Court went on to hold that:[52]
… the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.
[52] Mill v The Queen (1988) 166 CLR 59 at 66.
125The Court in Morgan v The Queen,[53] remarked that in cases where Mill is to be applied in the purist sense, the question the judge needs to ask is:[54]
What sentence would have been imposed had the offender been dealt with at one time for two or more sets of offences?
[53] Morgan v The Queen (2013) 40 VR 32.
[54] Ibid, 55 [104].
126The principle does not apply only to offending that is committed proximate to each other in time and place. It still applies here.
127Furthermore, the 49 days of 'dead time' served in the ACT, whilst not qualifying as pre-sentence detention under the Sentencing Act, should still be taken into account under the Renzella discretion.[55] I have done so.
[55] Warwick v The Queen [2010] VSCA 166; R v Renzella [1997] 2 VR 88.
Parity
128Where multiple offenders are sentenced, a Court is obliged to consider the relativity between all offenders.
129The sentences need to be proportionate to each other, having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
130I will not repeat the quote from R v Lowe.[56]
[56] R v Lowe (1984) 154 CLR 606, 610-611.
131But having regard to the similarities between your and Ms Phuong's offending in your respective roles, parity is obviously a relevant consideration in this matter.
132She received two years and two months with a non-parole period of one year and three months. Having had regard to the matters referred to in her sentencing remarks, there is a legitimate basis to impose disparate sentences. Ms Phuong made a confessional statement and pleaded guilty with an undertaking to give evidence against you. She had ties to the jurisdiction which would be undone by her risk of deportation—a matter that was of some moment by way of mitigation. She pleaded guilty at a time where greater benefits to pleas of guilty were afforded because of Worboyes.
133You, on the other hand, gave unconvincing denials, there was no subsequent co-operation by way of statement or undertakings to give evidence against others, the matter was set down for trial, you absconded and re-offended. These are not aggravating features. They are simply features of your case that deprive you of the kind of sentencing discount afforded to Ms Phuong.
Parsimony
134While of course the sentence imposed must adequately punish an offender, the Court must impose a sentence that is no more severe than is appropriate in all the circumstances.
Ultimate Sentencing Submission
135Mr Tom conceded that this offending demands a term of imprisonment with a non-parole period. I was urged to moderate the term of imprisonment and give proper weight to sentencing mitigatory factors, being your plea of guilty, hardship in custody and personal circumstances. I have tempered the sentence I imposed as best I can, having regard to those matters, guided very much by the principle of totality.
136It appears to be accepted that the proper application of principle results in head sentences and non-parole periods that fall within a common proportional range and that comparisons to those ranges is permissible in exercising the sentencing discretion. While the courts have stated there is 'no usual non‑parole period', the empirical observation is that non-parole periods usually fall within the 60 per cent to 75 per cent range which still 'informs the sentencing task by providing an important guide to judges'.
137The period I have set pays due regard to your prospects for reform whilst maintaining appropriate weight to be given to necessary and countervailing factors when sentencing. I have allowed for a measure of mitigation of punishment in favour of your reform through conditional freedom.[57]
[57]Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
138I have allowed what I consider to be a meaningful period of parole should you be eligible for it. The setting of both the head sentence and the non-parole period pays due regard both to the punitive and deterrent aspect of the offending, and takes into consideration your personal circumstances, plea of guilty, and all of the other matters raised in mitigation.
SENTENCE IMPOSED
139Having considered the many and various sentencing considerations required of me in this exercise, I sentence you to 2 years and 10 months (34 months) imprisonment and order you serve a non-parole period of 1 year and 8 months (20 months), which is approximately 60 per cent of the head sentence.
ANCILLARY ORDERS
140You have served 557 days by way of pre-sentence detention, which will be reckoned as having been already served in satisfaction of this sentence.
141Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 4 years' imprisonment and set a of non‑parole period of 3 years.
142I will make the Disposal Orders in the terms sought by consent.
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