Director of Public Prosecutions v Nguyen

[2025] VCC 568

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01804

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN HUY NGUYEN

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March, 8 May 2025
DATE OF SENTENCE:	8 May 2025
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2025] VCC 568

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW- SENTENCE

Catchwords:              Plea of guilty - One charge of cultivating a commercial quantity of a narcotic plant – total weight of cannabis 40.58 kg - plea of guilty at the earliest opportunity – electrical bypass - limited prior criminal record – offender was a crop sitter

Legislation Cited:      Drugs, Poisons and Controlled Substances Act1981 (Vic) s.72A; Sentencing Act1991 (Vic) s.5

Cases Cited:R v. Verdins (2007) 16 VR 269; Bugmy v R (2013) 302 ALR 192; Le v The Queen [2020] VSCA 220; DPP v Thomas [2019] VSCA 223

Sentence: Total effective sentence of 3 years imprisonment with a minimum of 2 years to be served before becoming eligible for parole. S6AAA: 6 years imprisonment, with a minimum of 4 years to be served before becoming eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Peter Pickering	Office of Public Prosecutions
For the Accused	Harry Redwood	James Dowsley & Associates

HER HONOUR:

1Van Nguyen, you have pleaded guilty to one charge of cultivate a commercial quantity of a narcotic plant[1]. This offence is a category 2 offence, which means that the Court is required to impose a term of imprisonment unless special circumstances exist. No special circumstances are advanced on your behalf.

[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s.72A

2You have also admitted your prior criminal history.[2]

[2]Criminal History

Circumstances of Offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 24 February 2025[3] the accuracy of which you accepted through your counsel.

[3]Summary of Prosecution Opening for Plea dated 24 February 2025.

4On 30 January 2024 police executed a search warrant at your Kings Park residence. They located an electrical bypass in the roof cavity which prevented the recording of electrical usage at the premises. You are not charged with theft of electricity.

5A hydroponic set up consisting of eleven lights, one fan heater and two charcoal filters were located.

6Three motor vehicles registered in your name were parked at the address, and personal documents including your passport and certificate of citizenship were located inside of one of the vehicles.

7Some 21 cannabis plants in various states of growth, together with dried cannabis were located throughout your residence. The total weight of all cannabis located was 40.58kg.

8You were present when police arrived but attempted to flee before you were arrested. You gave a no comment record of interview to police.

Nature & Gravity of Offending

9Cultivation of a commercial quantity of a narcotic plant is an inherently serious offence reflected by the maximum penalty it attracts of 25 years imprisonment. You accept that your offending is serious.

10Whilst there is evidence that you lived at the premises, you have been charged with cultivation on a single date only. The cultivation involved a standard hydroponic setup across multiple rooms of the house and utilised an electricity bypass. The prosecution accept that your role is appropriately characterized as one of “crop sitter”.

11The total weight of the cannabis was not quite twice a commercial quantity which is 25 kg.

12The objective gravity of your offending is at the lower end of the range for this inherently serious offence type.

13Whilst there is no evidence of personal enrichment in the form of cash or other tangible goods derived your offending you agreed to engage in “crop sitting” to pay off significant accrued gambling debts. Forgiveness of a debt is a benefit you were to derive from your offending. Your indebtedness is not a factor which can reduce your moral culpability for this offending.

Personal Circumstances

14You are recorded as currently 55[4] years of age and were 54 at the time of this offending. I note that your biological age may in fact be 59.

[4]Albeit you told Ian Mackinnon that you told the Australian authorities you were four years younger than your biological age, so you are around 59 year of age.

15You have three adult children. You are presently single and rent out a room in a share house. Your eldest sister’s children live in this house also. You look after your grandchildren on weekends so that your daughter can work.

16You were born in Vietnam and experienced poverty throughout your childhood. You finished school at age 18 and fled Vietnam to avoid military conscription. You were a refugee in Thailand for two and half years before migrating to Australia. You told consultant psychologist Ian Mackinnon of your experience growing up in the Mekong Delta region of Southern Vietnam, living with constant fear and tension as the Vietnam War raged around you.

17You were granted refugee status by Australia, and are now a citizen of this country.

18In Australia you worked in the textile industry for 10 years until your chronic back issues prevented you from continuing to work. You now rely on Centrelink benefits for support.

19You gamble 3-4 times per week, typically at TAB venues and clubs. You report that you have previously self-excluded yourself from Crown Casino. You have a long-standing gambling addiction which is significantly linked to this offending.

20You told Ian Mackinnon, Consultant Psychologist[5] of your long-term struggles with problem gambling. He diagnosed a mild Gambling Disorder. Mr Mackinnon also viewed your self-reported use of alcohol as problematic and opined that you also have a relatively mild Substance Abuse Disorder, and a long-standing Mixed Depressive and Anxiety Disorder.

[5]Report of Ian Mackinnon dated 14 April 2025

21Mr Mackinnon noted that despite your longstanding personal problems, and the broader socio-economic disadvantages associated with your refugee background, you have usually stayed out of trouble. You pursued gainful employment for many years whilst you were able to do so. You also maintain enduring relationships with extended family. Mr Mackinnon also opines that your offending represents an extreme aberration and that you appear to pose a low risk of recidivism of any kind. Mr Mackinnon also opines that it is likely that your depression and anxiety made a significant contribution to your offending by degrading your ability to apply good reason and make sound judgments which you were faced with an easy way to pay off a significant gambling debt.

22You have attended gambling counselling with Han Le on two occasions[6]. Han Le observed that you initially showed little insight into the harm caused by gambling, and you appeared disengaged and did not actively participate in your first group session. Your attitude improved on the second occasion and Han Le reported that you expressed a strong desire to stop gambling and are now motivated to make positive changes in your life.

[6]Report of Han Le dated 24 April 2025

23You have suffered from longstanding, debilitating spinal problems and have been unable to work for many years. Medical material was tendered to the court confirms that you are on a waiting list for surgery to fuse your spine.[7] You currently take anti-inflammatory medication for this condition.  You have not received that surgery you are awaiting. There is no material about what effect your incarceration would have upon your ability to receive this treatment. Whilst I accept in a general sense that being in pain or living with significant chronic pain would have an impact upon your experience in custody, there is no evidence tendered to the court as to whether or not incarceration will otherwise detrimentally impact your physical condition.

Sentencing Considerations

[7]Letters from Royal Melbourne Hospital addressed to Dr Vu Thien Nguyen 20 August 2022 and 19 June 2023.

Burden of Imprisonment

24Mr Mackinnon opined:

“he appears unlikely to cope “well enough” within the prison system. Mr Nguyen does not have any prior experience of the prison environment, and his physical and mental health issues, along with his lack of well-developed English language skills, are all likely to make it especially difficult for him to cope with the inherently threatening nature of the prison environment, to obtain adequate medical and mental health treatment, and to participate in prison programs and activities.”

25Mr Mackinnon acknowledged that his report is based solely upon what you told him. There is no basis upon which I can conclude that you will not be able to obtain adequate medical and mental health treatment in custody.

Verdins[8] and Bugmy[9]

[8]R v. Verdins (2007) 16 VR 269

[9]Bugmy v R (2013) 302 ALR 192

26The poverty and childhood experiences of war and life as a refugee have no doubt had a profound effect upon you. However, you clearly are a resilient man who functioned well, and but for one prior matter, have not come to the attention of police in Australia. You have worked hard, raised a family and maintained relationships. There is no evidentiary connection between your current offending and the childhood deprivation you experienced. Your moral culpability for this offending will not be reduced by childhood disadvantage, or “Bugmy” considerations.

27On the basis of your self-report, Mr Mackinnon, has diagnosed various mental health conditions. There is no other corroborative evidentiary basis to establish the existence of an enduring mental impairment, either at the time of your offending, or at the time of sentence. There is insufficient evidentiary basis to conclude that there is a serious risk that imprisonment will affect your mental health.

28For the reasons identified by Mr Mackinnon, I accept that imprisonment will likely be more onerous upon you that it would be for a person without your constellation of circumstances. However, I am unable to conclude that your moral culpability is reduced in accordance with Limbs 5 and 6 of Verdins’ case.

Plea of guilty and remorse

29You pleaded guilty at an early stage in these proceedings in the Magistrates’ Court and your matter was booked directly for plea in this Court. In doing so, you avoided the need for a trial, and avoided the use of public resources that would have otherwise been spent in conducting a trial. The utilitarian value of your plea is significant.

30You have not otherwise expressed remorse for your offending.

Criminal history

31You have one prior matter on your criminal record. That offending was over 20 years ago when you were sentenced to a community based order for possession of a drug of dependence and possession of property being proceeds of crime. Given the age of that prior matter it is of limited relevance.

Prospects of rehabilitation

32You have been on bail since your arrest on 30 January 2024. You only commenced gambling counselling after I adjourned this plea. Whilst your insight has improved you will require significant motivation and commitment to further counselling to address your entrenched gambling addiction. Given your limited and dated criminal history I cautiously conclude that you have reasonable prospects of rehabilitation if you continue to engage with counselling.

Comparable cases

33I was referred to various cases, said to be comparable to yours, or instructively different.

34Niall JA (as he then was) observed in Le v The Queen[10] that the fact that the charge is concerned with a commercial quantity:

brings into play the consideration that the amount of cannabis renders it likely that it is being cultivated for sale and profit….That assumes present significance in at least two ways.

The first is that the illegal activity is one motivated by profit and personal gain is relevant to any assessment of the appellant’s culpability.

Second, and importantly, to the extent that the duty of this Court is to take into account the protection of the community through general and specific deterrence, any sentence must recognise and respond to the rewards that those who are minded to engage in this form of offending stand to derive. Sentences must be sufficiently stern as to provide an antidote to the lure of the benefits.

[10][2020] VSCA 220, [12]

35In Le[11] the appellant pleaded guilty to a charge of cultivating a commercial quantity of cannabis, and other offences. Your counsel submits that the appellant in Le’s role was far greater than is yours in this case. The offending there involved a combined weight of approximately 50 kg of cannabis grown using a sophisticated hydroponic setup and utilised an electrical bypass. The offender was the same age as you and had prior convictions for trafficking heroin. A number of mitigatory factors operated to reduce his sentence. An appeal against a sentence of 5 years imprisonment in respect of the first charge was dismissed on appeal. Whilst not on all fours with your case, it is instructive. His Honour also set out a number of other similar cases from [18], to which I have regard, and noted that “sentences of above 3 years and 6 months’ imprisonment are not unusual for persons who played a low level functionary role, for a range of sentences for comparable amounts of cannabis.”

[11]ibid

36Like in Le whilst your offending appears to be isolated or episodic, with your only other prior offending occurring more than 20 years ago. The fact that you have turned to serious criminal offending in the face of the stressors of life, strongly points to the need for specific deterrence in your case. Furthermore, given the harm that drug addiction causes our community the need for general deterrence and community protection are also relevant sentencing considerations in your case.

37Counsel for the prosecution also referred to the table of cases in the Victorian Sentencing Manual for this offence type. This shows a range of cases, comprising similar and different features to your offending. I have regard to that table in a general sense.

38Your counsel referred to DPP v Thomas[12] in which an elderly offender suffering from significant health issues, who had experienced considerable delay between arrest and sentence, showed genuine remorse and was found to have very good prospects of rehabilitation. He was resentenced to time served of 225 days. That case differs in a significant number of key respects to yours, and is not a useful comparator in relation to sentence alone.

[12][2019] VSCA 223

Conclusion

39In sentencing you I must have regard to a range of matters such as the seriousness of your offending[13], your culpability for it and your personal circumstances.  I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

[13]Sentencing Act 1991 (Vic) s.5

Sentence

40Having regard to these various considerations, Mr Nguyen I sentence you as follows:

41On charge 1 (cultivate commercial quantity of narcotic plant) you are convicted and sentenced to 3 years imprisonment.

42I order that you serve 2 years before being eligible for parole.

43You have no pre-sentence detention.

Section 6AAA Declaration

44Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 6 years imprisonment with a non-parole period of 4 years.

Ancillary Orders

45I make the disposal and forfeiture orders sought by consent.