Director of Public Prosecutions v Nguyen
[2025] ACTSC 364
•15 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Nguyen |
Citation: | [2025] ACTSC 364 |
Hearing Date: | 13 August 2025 |
Decision Date: | 15 August 2025 |
Before: | Mossop J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cultivating commercial quantity of controlled plant for selling – low number of plants but sophisticated operation, including bypass of power meter – mid range offending – positive subjective factors and remorse – plea of guilty – impact of sentence on family – general deterrence of significance – 25 months’ imprisonment with a 13 month non‑parole period imposed CRIMINAL LAW – PLEA OF GUILTY – Discount for plea – whether prosecution case “overwhelmingly strong” – where plea of guilty entered in Magistrates Court before brief of evidence provided – significant that accused has no access to brief of evidence – where search warrant facially defective – submissions made about other limitations in the evidence – prosecution case not held to be overwhelmingly strong CRIMINAL LAW – SERIOUS DRUG OFFENCES – Cultivating controlled plants – where pattern of sentencing is at the bottom end of the range – maximum penalty provides a yardstick – pattern of sentencing likely explicable by use of “cleanskins” (persons with little‑to‑no criminal history) to engage in offending |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 35(4) Criminal Code 2002 (ACT), s 616(3) Evidence Act 2011 (ACT), s 138 |
Cases Cited: | DPP v Duong [2025] ACTSC 14 DPP v Le [2024] ACTSC 31 R v Can [2019] ACTSC 368 R v Ho [2019] ACTSC 41 R v Krizaic [2021] ACTSC 147 R v Li [2014] ACTSC 304 R v Ljubic [2013] ACTSC 125 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Ng [2016] ACTSC 88 R v Nguyen [2018] ACTSC 130 R v Pham (Supreme Court of the Australian Capital Territory, Murrell CJ, 31 January 2014) R v Quan [2014] ACTSC 385 R v Wong [2015] ACTSC 389 |
Parties: | Director of Public Prosecutions Duc Thang Nguyen ( Offender) |
Representation: | Counsel N Deakes ( DPP) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions JLe Lawyers ( Offender) | |
File Number: | SCC 81 of 2025 |
MOSSOP J:
Introduction
The offender, Duc Nguyen, has pleaded guilty to a charge of cultivating a commercial quantity of a controlled plant for selling, contrary to s 616(3) of the Criminal Code 2002 (ACT) (CAN 663 of 2025). The maximum penalty for that offence is 2,500 penalty units ($400,000), 25 years’ imprisonment, or both. The maximum penalty provides a yardstick and is an indicator of the seriousness with which the legislature treats this category of offending.
Facts
At about 11:10am on Wednesday, 8 January 2025, police executed a search warrant at premises owned by the offender in Kaleen.
The house at that address has two stories with five bedrooms, a lounge room, a living room, a dining room, a storeroom, two kitchens, two bathrooms and a built‑in two car garage.
Police attempted to alert any person present at the residence by knocking on the locked front screen door. The offender opened the main door, leaving the screen door shut. Upon observing police, he quickly closed the door, preventing police being able to effectively communicate or commence execution of the search warrant.
Police entered the residence and located the offender near the rear door of the residence, where he was placed under arrest.
Police secured the remainder of the residence and property and observed that, in numerous rooms, including covering much of the ground floor of the home, there was a sophisticated cannabis cultivation setup being powered by a significant electrical system. Within these rooms were numerous heat lamps, irrigation pipes and pumps, fans, industrial filters, and 156 cannabis plants in varying degrees of maturity.
The offender appeared to be the only person residing in the home as each of the rooms which traditionally would be identified as a bedroom, and the common areas, were converted for the cultivation. Only one room appeared to be occupied as a living and sleeping space, furnished with the offender’s personal effects.
Electricians attended the address and identified unauthorised electrical work. It was discovered that electricity was intentionally bypassing the electrical meter. A lesser percentage of power was still passing through the meter in order to give an appearance of legitimate usage, but the vast majority of the electricity was being diverted around the meter.
Objective seriousness
In R v Krizaic [2021] ACTSC 147, Murrell CJ discussed the relevant factors that are to be taken into account to assess the objective seriousness of cultivation offences (at [25]), including:
(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.
The plants were grown hydroponically in a house owned by the offender, who was ostensibly the only resident at that time. The fact that he owned the house, had exclusive possession, and hence controlled what occurred in the house, is of significance. I accept the submission on behalf of the offender that the evidence does not establish that the offender was responsible for setting up the grow house or that he was the “mastermind” behind the operation. However, it is significant that he was the owner with exclusive possession of the house.
His motivation was to obtain money for the growing of the cannabis. He knew that was illegal. By whom he was offered money and the terms on which he was offered money were not disclosed to the author of the pre‑sentence report or to police. There is no evidence that he was a cannabis user. As a consequence, it can be safely inferred that he engaged in the enterprise for profit, whether that was hoped to be derived on a fixed, percentage, or other basis.
The number of plants was 156. Given the range of plants covered by the concept of a commercial quantity (100 to 1,000), the number of plants is at the lower end of the range.
The operation was of a sophisticated nature. Although it is not clear precisely who determined the methodology and supplied the seeds or seedlings and equipment necessary to set up the grow house, it was an activity for which the offender was responsible and occurred in a house that he owned.
Although the offending was discovered on the day of the search, the setup of the house and the fact that plants were in different stages of development indicated that it had been ongoing for some time.
Taking these matters into account, I would assess it is a mid range offence.
Subjective circumstances
Mr Nguyen is a 36‑year‑old Australian citizen who migrated to Australia from Vietnam in 2006 with his family in the pursuit of a better life. He obtained citizenship in 2011. He has three older sisters. His parents and older sisters reside in Canberra. He is married with two children, one aged seven months and the other aged eight years. He has been self‑employed as a handyman since 2015 and is currently undertaking a goldsmithing course through a jewellery business in Sydney.
He currently lives in Sydney, following an amendment to his bail conditions. He stated to the author of the pre-sentence report that he is currently employed. He regularly attends a Buddhist temple.
He is in good physical health, and does not have any physical or mental health issues. He reported some periods of stress around the time of the offending.
The references indicate that he is a person of otherwise good character, being a devoted partner and loving father as well as a kind, respectful and hard-working individual.
Mr Nguyen states that he was offered money to grow the cannabis in his home, being aware that such an act was illegal. He was arrested when his youngest child was less than a month old. He was separated from his wife at that time, although they subsequently reconciled.
The offender does not have any criminal history. The references from his wife, the owner of the business with whom he is undertaking a goldsmithing course, and a long-term friend all present a positive picture of the offender. They are consistent with him being a person otherwise of good character. They indicate his remorse and are consistent with him having good prospects of leading a lawful life in the future. They do not really explain how or why he got involved in such serious offending.
Plea of guilty
The offender entered his plea of guilty in the Magistrates Court on the seventh mention, following representations and negotiations between the parties. This would ordinarily result in a 25 percent reduction in the sentence to be imposed when compared with the sentence that would have been imposed without a plea of guilty.
However, the prosecution submitted that the evidence was “overwhelmingly strong”, relying upon the statement in R v Newby [2022] ACTCA 20; 367 FLR 122 at [31] that this threshold is satisfied where “an acquittal [would be] realistically unlikely”.
On the other hand, the offender submitted that, although the prosecution case was a strong one, it does not satisfy the requirement that it be “overwhelmingly” so. The offender pointed to the facts that he made no admissions to police, there was no forensic evidence connecting the offender to the actual cultivation, and the original search warrant was “defective on its face”. The latter was explained in oral submissions and arose from the fact that the search warrant for the premises was dated 5 January 2024 when the search occurred on 8 January 2025.
Although, because of his early plea, the offender did not have access to the evidence contained in the brief of evidence, the statement of facts prepared for the Magistrates Court proceedings indicated that the execution of the search warrant commenced at 11:10am, that the erroneous date was identified by 2pm and a new warrant only obtained at 4:25pm.
Although, in the absence of a brief of evidence, the assessment for the purposes of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) is more difficult, it cannot be said, in light of such an obvious defect with the relevant warrant, that the prosecution case was overwhelmingly strong. While the evidence obtained during the search may have been admitted pursuant to s 138 of the Evidence Act 2011 (ACT), the starting point under that section is that the evidence “must not be admitted”, and such errors have led to exclusion of evidence in drug cases: see R v Ljubic [2013] ACTSC 125. For those reasons, s 35(4) does not constrain the reduction in sentence and a 25 percent reduction is appropriate.
Time in custody
The offender spent 16 days in custody. This period will be taken into account by backdating the sentence imposed.
Pattern of sentencing
The prosecution submissions made reference to a number of cases involving this offence. They demonstrated starting points of as low as between seven and eight months’ imprisonment and as high as 36 months’ imprisonment. At the bottom end of the range of cases, the pattern of sentencing included sentences that were fully suspended. The cases referred to in the prosecution submissions were: DPP v Duong [2025] ACTSC 14; DPP v Le [2024] ACTSC 31; R v Can [2019] ACTSC 368; R v Ho [2019] ACTSC 41; R v Nguyen [2018] ACTSC 130; R v Ng [2016] ACTSC 88; R v Wong [2015] ACTSC 389; R v Quan [2014] ACTSC 385; R v Li [2014] ACTSC 304; R v Pham (Supreme Court of the Australian Capital Territory, Murrell CJ, 31 January 2014).
Having regard to the very large maximum penalty, the sentences imposed appear clustered at the bottom end of the range of potential sentences. This could arise from a failure to give sufficient weight to the yardstick provided by the legislature. An alternative reason is that the typical model for the illegal activity in these cases is to have someone with no or negligible criminal history carry out the growing of the plants, making them less likely to be a target of police investigation and leaving the persons higher up the criminal organisation distant from the carrying out of the criminal scheme. To use colloquial language, the involvement of such “cleanskins” is a feature rather than a bug of the overall criminal scheme. For present purposes, I proceed on the basis that the latter rather than the former is the explanation for the pattern of sentencing disclosed in the cases which were referred to.
Consideration
In a case such as this, general deterrence is the most significant purpose of sentencing. In R v Ho, Burns J referred to general deterrence as being given prominence when sentencing for conduct similar to that under consideration in this case. 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.
I agree with the prosecution’s submission that, having regard to the evidence about the offender’s subjective circumstances, specific deterrence has a limited role to play in any disposition as it is unlikely that the offender will be before the courts again for similar offending.
Having regard to the nature and circumstances of the offending, a custodial sentence is clearly warranted.
I consider that the appropriate starting point is a sentence of 34 months’ imprisonment, reduced to 25 months on account of the plea of guilty.
The difference between the parties was whether that should be required to be served by full-time detention or whether a suspended sentence or intensive correction order would be an appropriate disposition.
By application in proceeding dated 11 August 2025, the offender sought the adjournment of the proceedings and a direction that an intensive correction order assessment report be prepared. I declined to adjourn the proceedings at the sentencing hearing, considering it better to hear submissions and determine later whether an intensive correction assessment should be ordered. I have considered the matter on the basis that the offender would be found suitable for such an order.
The offender submitted that an intensive correction order remained an alternative to full‑time imprisonment, noting that the number of plants was at the lower end of the commercial range, characterising the offender as a “caretaker”, and submitting that, although financially motivated, the offending was not motivated by greed. Counsel also pointed to his otherwise good character, the early guilty plea, the absence of any further offending in the seven months he has been on bail, and his willingness to relocate to the ACT and live with his extended family to comply with an intensive correction order with a requirement for community service. Counsel put every appropriate submission that could be put in favour of the offender. I reserved my decision for two days in order to permit the offender to put any additional evidence before the court. No additional evidence was tendered or submissions made.
I do not consider that an intensive correction order would be an appropriate disposition, even if combined with a significant component of community service. That is because such a sentence would not be sufficient to adequately address the need for general deterrence of this type of offending in circumstances where the offender was the owner of the property and not a mere caretaker. Further, having regard to the offender’s personal circumstances, the effect of an intensive correction order would be little different to a suspended sentence, he not having any particular rehabilitative needs. A suspended sentence would not, in my view, give sufficient weight to the need for general deterrence.
I accept that imposing a sentence of imprisonment will have an effect on his family. It is likely to have a severe impact upon his wife, who will be required to care for their two children, including a young baby, without his support. I have taken into account the impact upon his family as a particularly significant consideration in determining the appropriate non-parole period. The non-parole period will be 13 months. That is a period at the bottom end of the usual range.
Orders
The orders of the Court are:
(1)The application in proceeding dated 11 August 2025 is dismissed.
(2)On the charge of cultivating a commercial quantity of a controlled plant for selling (CAN 663/2025), the offender is convicted and sentenced to imprisonment for 25 months, commencing on 28 July 2025 and ending on 27 August 2027.
(3)The non-parole period is 13 months commencing on 28 July 2025 and ending on 27 August 2026.
| I certify that the preceding thirty‑nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: |
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