DPP v Bui [2025] ACTSC 359

1. On 27 March 2025, the offenders, Mr Anh Tuan Bui and Mr Ngoc Canh Tran, each pleaded guilty in the Magistrates Court to one count of cultivating a commercial quantity of a controlled plant for selling (CAN 8533/2024 in relation to Mr Bui, CAN 8536/2024 in relation to Mr Tran). They were subsequently committed to the Supreme Court to be sentenced under s 90A of the Magistrates Court Act 1930 (ACT).

2. The maximum penalty for the offence under s 616(3) of the Criminal Code 2002 (ACT) is 2,500 penalty units, imprisonment for 25 years, or both. That maximum penalty is an important indicator of the gravity with which the legislature treats this offence.

3. A commercial quantity of cannabis plants is 100 plants, and a large commercial quantity is 1,000 plants. The maximum penalty in relation to cultivating a large commercial quantity is imprisonment for life.

4. The offence in relation to Mr Bui is a rolled-up charge of cultivating a commercial quantity of a controlled plant, namely cannabis, at two properties, one in Flynn and one in Fraser. The cultivation was done with the belief that someone else intended to sell the plants or their products. The Flynn property had 356 plants, and the Fraser property had 379 plants, giving a total of 735 plants.

5. In relation to Mr Tran, the offence is cultivating a commercial quantity of a controlled plant for selling, and only relates to the Flynn property. Once again, the cultivation was with the belief that someone else intended to sell the plants or their products. As he is only charged in relation to the Flynn property, the relevant number of plants is 356.

Facts

6. On 22 August 2024, police simultaneously executed search warrants at addresses in Canberra and identified sophisticated cannabis grow houses in the suburbs of Flynn and Fraser. A significant amount of cannabis plants and dried cannabis were located at each property, and electricity was illegitimately diverted from the power grid to the properties.

Search warrant — Flynn property

7. When police attended the Flynn property, Mr Tran opened the front door of that property.

8. It was a five-bedroom house containing a living room, dining room, kitchen, garage, bathroom, laundry and storage area under the floorboards. The house contained no beds, bedding or couches, and it appeared that the house was solely used to cultivate cannabis. Inside, police observed all of the main rooms and half of the garage to contain numerous heat lamps, irrigation pipes and pumps, fans, industrial filters and 356 cannabis plants. Police also located chemicals throughout the house that are designed to assist in the cultivation of plants.

9. Two EVO Energy electricians were called to the Flynn house. The electricians identified that the house had been diverting electricity from the power grid by use of a point of attachment, without authorisation from EVO Energy. This attachment meant the house was able to siphon electricity from the power grid uncharged. Photographs, which form part of the prosecution tender bundle, show the extensive nature of the electrical wiring, lighting, plants and plant products in the house.

10. Approximately 29 kg of dried cannabis was located throughout the house.

11. Police searched the storage area under the floorboards where they located a male hiding in the corner behind a cardboard box. This male was later identified as Mr Bui.

12. Police arrested Mr Bui and Mr Tran.

Search warrant — Fraser property

13. The facts in relation to the Fraser property only relate to Mr Bui. At the same time as the search of the Flynn property, police executed a search warrant at the Fraser property. It is a four-bedroom house containing a lounge room, dining room, family room, rumpus room, kitchen, garage, bathroom and laundry. Inside, police observed all of the main rooms and half of the garage to contain numerous heat lamps, irrigation pipes and pumps, fans, industrial filters and 379 cannabis plants. Police also located chemicals throughout the house that are designed to assist in the cultivation of plants.

14. EVO Energy electricians were called to the Fraser house. The electricians identified that the house had been diverting electricity from the power grid by use of a point of attachment, without authorisation from EVO Energy. This attachment meant the house was able to siphon electricity from the power grid uncharged.

15. Once again, the extensive nature of the operation is illustrated in photographs which were tendered.

16. Approximately 31.5 kg of dried cannabis was located throughout the house.

17. The house contained no beds, bedding or couches, and it appeared that the house was solely used to cultivate cannabis. Search warrant — Melba property

18. In another search of a residence in Melba, police located documents associated with Mr Bui and a small diary containing numerous notes regarding liquid measurements of products described as “Monsta bud” and “Monsta grow”.

Extent of involvement — Mr Bui

19. Evidence provided by Mr Bui and his wife, which is accepted by the prosecution, indicated that Mr Bui had been working in Sydney cleaning newly built houses. Then he worked as a builder’s assistant for a friend. He did that for about 12 months. Another friend, whom he named, asked him to go to Canberra, where people said there was lots of work. At first, he did gardening work, trimming trees, mowing the lawn and cleaning. Later, another person, whom he named, introduced him to work growing cannabis plants indoors. He was paid $400 a day for watering the plants, cleaning and mowing the lawn around the house. He worked in that role for three to five days before being arrested.

Extent of involvement — Mr Tran

20. In relation to Mr Tran, the evidence provided in the report of psychologist David Green, which is accepted by the prosecution, is that he was working in a restaurant in Leichardt and met a customer, whom he named, who told him that if he was interested, he could do some cleaning work in Canberra. He was told that the cleaning work would take three days and each day he would be paid $300. Mr Tran thought this was good money. He went to the house with the person and discovered that cannabis was being grown there. He was encouraged to stay and do the job and stayed at Mr Bui’s house that night. They went to the Flynn property the next day and that is when they were arrested.

Mr Bui

Objective seriousness

21. The matters identified by Murrell CJ in R v Krizaic [2021] ACTSC 147 at [25] are relevant to the assessment of the objective seriousness of cultivation offences.

22. So far as Mr Bui is concerned: (a) his role was to maintain the plants and, hence, he was directly involved in the cultivation; (b) his motivation was to obtain a wage, rather than a share of the profits of the cultivation; (c) the total number of plants being cultivated in the houses for which he was responsible was 735; (d) the operation was a sophisticated one, being typical of a grow house; and (e) the duration of the offending was short, being three to five days.

23. The offence is in the low to mid range of objective seriousness for this offence.

Subjective circumstances

24. Mr Bui is a 53-year-old man who came to Australia from Vietnam in May 2023 on a holiday and overstayed his visa. He and his wife had three children, but the youngest son died in an accident in Vietnam while Mr Bui was away in Australia. This was kept from Mr Bui for about a month, and when he found out, he delayed facing that reality and did not return to Vietnam, but decided to stay in Australia, earn money and then return to Vietnam to build a grave for his son.

25. Mr Bui is a truck driver in Vietnam, involved in transporting furniture. He is the main breadwinner in his family. His wife described him as a loving and devoted husband and father. He had a positive upbringing and maintains good relationships with his ageing parents. He has a limited education and did not finish school. During his time in custody on remand, he has had a difficult time because he cannot speak English and has not been able to join in programs at the prison. He had no visitors and his only regular phone calls have been with his wife in Vietnam. He has been a minimum-security detainee and has worked as a cleaner during his time in custody. He wishes to return home as soon as possible, following the completion of his court matters.

Plea of guilty

26. On 27 March 2025, Mr Bui’s solicitor indicated a plea of guilty to the charge now before the court in the ACT Magistrates Court. The plea was indicated at the ninth substantive mention, and after a brief of evidence had been disclosed.

27. The plea was entered as a result of negotiations between the parties, which resulted in rolled-up offences for Mr Bui and the discontinuation of other charges.

28. Although the plea was entered after a brief had been prepared, a 25 percent reduction in the sentence that would otherwise have been imposed is appropriate.

Time in custody

29. Mr Bui has been remanded in custody since his arrest on 22 August 2024. He has spent 355 days (or 11 months and 21 days) in custody prior to the date of his sentencing. This will be taken into account by way of backdating the sentence. Consideration

30. Mr Bui had a limited role in the offending, although a considerably greater role than that of Mr Tran, and his role was a minor one in the scheme overall. He has spent a very substantial period in custody on remand. He will be deported to Vietnam upon the conclusion of his sentence. He has good prospects of rehabilitation. Because he is likely to be deported, there is a negligible prospect of any further offending in Australia. Plainly enough, general deterrence is a significant consideration, even for people at a low level in a criminal organisation involved in the cultivation of cannabis.

31. I was referred to other cases with similar offending, each involving a greater degree of involvement on the part of the offender. These cases indicated starting points between 14 and 36 months. In one case, a sentence of five months and 24 days was imposed after an early plea of guilty. That reflects a starting point between seven and eight months.

32. The appropriate starting point in the present case is a sentence of 15 months, reduced to 11 months and seven days on account of the plea of guilty. Having regard to the fact that the offender has spent 11 months and 21 days in custody, this sentence has been fully served.

Mr Tran

Objective seriousness

33. The objective seriousness of Mr Tran’s offending is less than that of Mr Bui’s offending. So far as Mr Tran is concerned, the number of plants is only 356 and his involvement is both shorter, just over one day, and less significant, being only responsible for cleaning, rather than directly involved in the cultivation. The offence is at the low end of the range for this serious offence.

Subjective circumstances

34. Mr Tran is 48 years old. He was born in Ha Tinh province in Vietnam. He lived in a small brick house. The village had running water and electricity. During his childhood, many people in the village were rice farmers. The area is being industrialised. His parents are still alive. His father was a mathematics teacher. Mr Tran feels as though he has not lived up to his parents’ expectations of what he would achieve. He completed school and an economics degree at a university in Vietnam, graduating in 1999. He worked for an investment fund for 10 years and then as a personal assistant for another nine years. He had two children with his first wife. He separated from his wife after a holiday in Australia in 2018. He met his second wife while in Australia during that time. In 2019, he returned to Australia and married her. He had custody of the children, but they stayed with their grandparents in Vietnam. They were subsequently brought out to Australia. His daughter is now in Year 12 and his son is in Year 7, both at high school in New South Wales. His second wife left him in 2023. He currently has permanent residency. The submissions made on his behalf record: “He has been married twice, but both of his ex-wives left him on account of their dissatisfaction with his lack of achievement in life”.

35. Although he was working in a restaurant immediately before the offending, he is currently working in a factory making aluminium windows.

36. While he was in custody on remand, his children’s maternal grandmother travelled to Australia, stayed with them and looked after them. She has now returned to Vietnam.

37. Mr David Green, a psychologist, gave Mr Tran diagnoses of social anxiety disorder and major depressive disorder of moderate severity, with multiple episodes. He also assessed Mr Tran’s risk of reoffending as low.

Plea of guilty

38. On 27 March 2025, Mr Tran’s solicitor indicated a plea of guilty to the charge now before the court in the Magistrates Court. The plea was indicated at the ninth substantive mention, after a brief of evidence had been disclosed.

39. The plea was entered as a result of negotiations between the parties. In relation to Mr Tran, the prosecution agreed to withdraw charges in respect of the Fraser property, roll up charges, and discontinue other charges.

40. Although the plea was entered after a brief of evidence had been prepared, a 25 percent reduction in the sentence that would otherwise have been imposed is appropriate.

Time in custody

41. Mr Tran was remanded in custody from 22 August 2024 to 26 March 2025. He has spent 216 days (or 7 months and 4 days) in custody prior to his sentencing.

Consideration

42. Mr Tran had minimal involvement with the actual cultivation. General deterrence remains a significant sentencing purpose, having regard to the need to deter those at a low level in a criminal organisation involved in the cultivation of cannabis as well as those further up in the criminal hierarchy.

43. He has spent a substantial period in custody on remand. His children are dependent upon him for support. It is not clear what would happen to them if he received a sentence which required him to spend further time in custody. His time in custody has been more burdensome, and any future time in custody would be more burdensome, because of his mental health condition, the impact of custody on his capacity to care for his dependants and his limited English. I accept that he is remorseful for his involvement and that his time in custody on remand has had a salutary effect on him.

44. In my view, the appropriate starting point is eight months’ imprisonment, reduced to six months on account of the plea of guilty. That sentence will be backdated so as to reflect the time Mr Tran has spent in custody on remand. It is a sentence which has, therefore, been fully served.

Orders

45. The orders of the Court are: (1) On the charge of cultivating a commercial quantity of a controlled plant (CAN 8533/2024), Anh Tuan Bui is convicted and sentenced to 11 months and 7 days’ imprisonment, commencing on 5 September 2024 and ending on 11 August 2025. (2) On the charge of cultivating a commercial quantity of a controlled plant (CAN 8536/2024), Ngoc Canh Tran is convicted and sentenced to six months’ imprisonment, commencing on 12 February 2025 and ending on 11 August 2025. I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: