Director of Public Prosecutions v Do

[2015] VCC 711

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00457

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUU DO

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2015
DATE OF SENTENCE:	27 May 2015
CASE MAY BE CITED AS:	DPP v Do
MEDIUM NEUTRAL CITATION:	[2015] VCC 711

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Plea of guilty to one charge cultivating a narcotic plant in a  commercial quantity -  crop sitter – 41 year old single mother –resides  in Sydney – gambling problem – no prior convictions – Prosecution and Defence agree CCO within range
Sentence: 12 month Community Corrections Order, with conviction, programs, no work component to allow return to Sydney.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson	OPP
For the Offender	Mr P. Allen	Stary & Associates

HER HONOUR: 

1Luu Do, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity.  You took on a role as the crop sitter of an extensive crop of cannabis growing in a suburban house.  It is a serious offence for which the maximum penalty is 25 years' imprisonment.

2During 2014 you met a man in Sydney, where you live, who appeared to befriend you and offered you farming work in Melbourne.  For various reasons, at the age of 41, you were vulnerable and at a low ebb in your life and you accepted the offer.  You came to Melbourne on 17 September and you were met by this man who took you to a house in St Albans.  He told you to stay in the front part of the house where there was a bedroom and a bathroom and that farm work would soon become available.

3On 11 October, the man contacted you and asked you to turn off lights in the garage and water plants located in the other two bedrooms.  You did so and continued to water the plants for three successive days.  You were offered $5,000 for the work but you believe you never accepted the offer and you never received any money. 

4You began to feel uncomfortable, realising what you were doing was wrong and you decided to return to Sydney, but the next day police executed a search warrant at the house and you were arrested.  The police found a total of 81 plants in the house in various stages of maturity, with a total weight of 55.259 kilograms.  About half were pots in a wardrobe and the rest were growing under hydroponic conditions with the equipment usually found in such circumstances.  The electrical supply had been modified to bypass the installed meter.  You were remanded in custody for 23 days until you were released on bail and allowed to return to Sydney. 

5You are the sole parent of three children, the eldest aged 18 and studying at university, the younger two aged ten and 11.  You were born in South Vietnam in 1973 and in the aftermath of the war your parents were forced to give up their jobs and take up rural occupations in the countryside.  This consigned your family to poverty and ultimately prevented you from completing a medical degree which you commenced after leaving school.  Your parents were only able to support you as a student for two years and you had to give up your studies.

6You married at the age of 21 and came to Australia with your husband in 1994.  Your son was born but the marriage ended in about 2000.  In 2008, you married your second husband and two daughters were born of that marriage.  You husband, Dac Loi Nguyen, ran a grocery store and you looked after the children and supported the business.

7

In 2011, your mother died suddenly in Vietnam.  You were very close to her and this caused you significant grief.  You became depressed and struggled with life but did not seek professional help as you were advised to do.  Unable to sleep, you began going to poker machine venues late at night, developing a serious gambling problem.  You concealed this from your husband for some time but eventually it caused irreparable strains on the marriage and you separated and later divorced.  It was against this background that you accepted the offer to go to Melbourne leaving the children with your

ex-husband.  He has provided a letter to the court in which he has confirmed much of this detail, adding that your children had missed you very much when you were away and that if you were imprisoned he would find it difficult to look after the younger ones as he has to work.

8Your friend, Ms Le, also provided a reference in which she described how distressed you have been these past few months.

9From what I understand about you, you are essentially a devoted mother to your children and very proud of you son's achievements.  His success must be particularly important given that your own ambitions were thwarted when you were a young woman. 

10You have no prior convictions and it seems out of character for you to have offended the way you did.

11I do not have any specific independent evidence of your depressed state of mind now or over the past year or so, but I have seen a copy of the prescription for Tamazepam prescribed by your doctor and I understand that you have been too embarrassed and ashamed to have told him about this charge.

12Your prospects for rehabilitation would seem to be good in that you have your family to look after and in turn to provide you with support. 

13In February last year you became determined to overcome the gambling problem and signed a voluntary exclusion agreement in relation to poker machine venues in the area.  In preparation for this court case you were unable to obtain a copy of this, so you have entered into a new agreement recently, a copy of which was tendered.  That is a strong indication of your will to overcome the problem.

14Your counsel has submitted that a community corrections order is appropriate and that a prison sentence is not necessary to deter you from offending in this way again.

15As for general deterrence, that is the need to deter others and for the court to denounce such behaviour, your circumstances are somewhat different from others in that prison would be particularly hard for you.  You do not speak English well despite many years in Australia, you would be isolated from family and friends in New South Wales and you would suffer great anxiety about your children managing without you.  Clearly you are very close to them and they to you.

16I take into account your early plea of guilty and for that you are entitled to a discount on your sentence for having expedited the progress of the case and for having avoided a trial.  It is also an indication of remorse and that is also apparent from your other circumstances. 

17I take into account that you have spent 23 days in prison and that you found that very hard, not knowing what was going to happen to you and the children.

18As I said a moment ago, your counsel submitted that a community corrections order is the appropriate disposition and the prosecution agrees that that sentence is within range.  You have been assessed as suitable for that order and accordingly that will be the sentence.

19The details are that a conviction will be recorded and the order will begin today and will last for 12 months.  You will be under supervision and must undertake programs designed to assist you with learning the English language, with addressing any mental health problems and with the gambling addiction that led you in part to the vulnerability that left you exposed to exploitation.  There may be other programs designed to prevent re-offending and you must take part in any such program if required to do so.

20I have considered carefully whether you should be required to perform unpaid community work as part of the order.  You would have to remain in Melbourne to do so and according to enquiries I have initiated you would have to remain here for several weeks in order to complete a modest number of hours.  A resident of Victoria would be able to complete work hours whilst remaining at home, but that is not possible for you and the difficulties that would entail for you would magnify the punishment unfairly.

21You spent just over three weeks in custody when you were charged and you found that a shocking experience.  That has served as a salutary punishment for you and when taken together with the obligations imposed under the community corrections order, I am satisfied that there is no further need for punishment.

22If you had pleaded not guilty to this charge, I would have sentenced you to a two year community corrections order with 70 hours of unpaid work.

23Under s.464ZF of the Crimes Act, the prosecution seeks an order for a forensic sample of saliva and through your counsel you have consented to that.  I make that order and advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.

24The prosecution also seeks an order for the disposal of items seized and I make that order to which you have also consented.

(Discussion ensued re weight of drug)

25HER HONOUR:  That CCO is now ready for signature.  Do you want to look first, Mr Allen?

26MR ALLEN:  Thank you.

27HER HONOUR:  While that is being signed, Mr Henderson, I have signed the disposal but I have not been given the 464 yet to sign.  Is that available?

28MR HENDERSON:  With our associate, Your Honour.

29HER HONOUR:  Is it?

30MR HENDERSON:  Yes.

31HER HONOUR:  This has Her Honour Judge Campton's name on it.  I do not think I told you your client, Mr Allen, that she has to attend the Sunshine Corrections Centre, I will just get the address.

32MR ALLEN:  I believe she has been provided a card as well.

33HER HONOUR:  She has got that, has she?

34MR ALLEN:  From a Corrections worker from Sunshine Corrections Office.

35HER HONOUR:  10 Foundry Road, Sunshine, by 4 o'clock on Friday.

36MR ALLEN:  Friday, yes.

37HER HONOUR:  Anything else?

38MR HENDERSON:  No, Your Honour.

39MR ALLEN:  No, Your Honour.

40HER HONOUR:  Thank you.

41(Section 464ZF order signed and acknowledged.)

42(Disposal order signed and acknowledged.)

43(Community corrections order signed and acknowledged.)

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