Director of Public Prosecutions v Lu
[2017] VCC 958
•17 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00481
Indictment No G13451059
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH LU |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2017 | |
DATE OF SENTENCE: | 17 July 2017 | |
CASE MAY BE CITED AS: | DPP v Lu | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 958 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Cultivation of a narcotic plant in a commercial quantity – theft of electricity – sophisticated hydroponic set-up in three rooms of house – principal offender – mid-range seriousness of offending – application of Nguyen v R – electrical bypass installed by offender – offender aged 52 – early guilty plea – no prior convictions – non drug-user suffering financial hardship – purely financial gain motive for offending – unemployed – full time carer of young children – not exceptional circumstances
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Electric Light and Power Act 1958 as preserved by s107 State Electricity Commission Act 1958
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Kuan | Monica Shamon Lawyers |
HIS HONOUR:
1 Thanh Lu, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity[1] and one charge of theft.[2] The maximum penalty for cultivating a narcotic plant in a commercial quantity is 25 years’ imprisonment and the maximum penalty for theft is ten years’ imprisonment.
[1]Contrary to s72A Drugs, Poisons and Controlled Substances Act 1981
[2]Contrary to s74(1) Crimes Act 1958 and s51 of the Electric Light and Power Act 1958 as preserved by s107 of the State Electricity Commission Act 1958
The facts
2 The prosecution has filed a summary of prosecution opening upon plea, dated 27 June 2017, which I have been told by your counsel I can treat as a statement of agreed facts.[3]
[3]Exhibit P1
3 The offences occurred at 18 Flinders Street, Taylors Hill, where you resided with your wife and three children, who are aged between 15 and eight years. The house is a single storey brick house with five bedrooms, which is owned by your wife. The three bedrooms of the property were isolated from the rest of the family and you were the only one who could access these rooms.
4 At the time of the offending, you were unemployed. However, you have been employed in an electrical trade in the past with a company making transformers.
5 At approximately 4.30 am on 3 October 2016, your wife and your eldest son contacted police and reported an attempted break-in at your property. They reported that two masked men tried to enter through the front door of the home and that you believed the men were carrying a firearm.
6 When police arrived, they saw there was significant damage to the front door. They viewed CCTV footage in relation to cameras which you had installed at the home.
7 When police entered the house, they immediately detected a strong smell of cannabis. Incense was found to be burning in every room of the house. Moreover, police saw that external locks had been placed on the interior doors to the three rooms at the rear of the house. As police approached these rooms, they observed your demeanour change markedly. You became nervous and tried to keep police away from the three rooms.
8 When police searched outside the property, they also noticed that the rear window coverings of these three rooms did not match the curtains in the rest of house and that barbed wire had been attached to the top of the rear fence. As a result of these observations, police suspected that you were cultivating cannabis at the house. Consequently, they obtained a search warrant under the Drugs, Poisons and Controlled Substances Act 1981.
9 The search warrant was executed at your address on 3 October 2016. Police searched the premises and you granted them access to the three back rooms. Inside these rooms police located a sophisticated hydroponic set-up, growing cannabis plants of varying sizes.
10 The following items were seized by police:
(a)In Bedroom 1, 30 small cannabis plants, five light globes, shrouds and transformers and a power board;
(b)In Bedroom 2, 13 medium cannabis plants, ten light globes, shrouds and transformers and a power board;
(c)In Bedroom 3, 13 large cannabis plants, 11 light globes, shrouds and 12 transformers.
11 The total weight of cannabis that you were cultivating comprised 56 plants, in total weighing 46.39 kilograms. Under the Drugs, Poisons and Controlled Substances Act, a commercial quantity of cannabis comprises 100 plants or 25 kilograms[4]. Hence, your offending constitutes almost double the commercial quantity by weight of cannabis plants.
[4]See s70 and Schedule 11, Part 2 of the Drugs, Poisons and Controlled Substances Act 1981
12 An electrical by-pass was installed at the property and was located in the wall cavity in the front room. This gives rise to Charge 2 on the indictment.
13 You were arrested and taken to the Melton police station for interview. During your record of interview, you made full admissions to police and said, among other things, that you were growing the cannabis at the property and thought you had 52 plants, that you were learning to grow cannabis by conducting research on the internet and you admitted that you had set up the hydroponic equipment on your own.
14
You told police that the crop located by them was the second crop you had been cultivating and that you had already cultivated one crop from which you had harvested three or four pounds of cannabis, which you sold for $7,000. You admitted that the hydroponic system had been set up for approximately seven months and that the first crop took you about three months to grow. It is as
a consequence of making these admissions that the charged period commences on 3 March 2016. You admitted installing the electrical bypass, using your electrical knowledge to do so. The reason you gave for cultivating cannabis was that you could not find work.
15
The charge to which you have pleaded guilty encompasses the period 3 March 2016 to 3 October 2016 and therefore covers both your earlier crop and the crop which was found in situ by police during the search. The Crown allege that the first crop represents between 1.3 to 1.8 kilograms dried weight. This is to be added to the 46.39 kilograms of cannabis which was located by police on
3 October 2016, making a total of about 47.69 kilograms.
16 I was told by your counsel that the first crop was grown in two bedrooms of the house and that you expanded your illegal operation into a third bedroom to grow the crop which was in situ at the time of the police search.
17 Over the course of the cannabis growing operation, it is alleged that you stole 40,761 kilowatts of electricity worth $15,199. A compensation order is sought in favour of Origin Energy. I understand that you consent to the making of that order and consequently I have made that order in those terms.[5]
[5]Pursuant to s86 of the Sentencing Act 1991
Nature and gravity of the offence
18 Cultivating a commercial quantity of a drug of dependence is a serious criminal offence, as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar.
19 You played a crucial role in a highly planned and sophisticated criminal enterprise. Your moral culpability, as accepted by your counsel, is very high. Your motive for your crimes was purely financial. You are not a user of cannabis, seeking to support your habit.
20 I assess this to be a serious example of this serious offence. The objective facts and circumstances which make it so include the following:
(i)The period of offending is seven months;
(ii)The quantity cultivated is nearly two times the commercial quantity;
(iii)You were in possession of the crop;
(iv)You had researched on the internet how to put in place an electrical bypass and how to hydroponically grow cannabis;
(v)You bought the necessary equipment second hand over a period of time as you progressively saved money for this purpose;
(vi)You installed the equipment yourself, initially in two bedrooms of your wife’s house and then after the first crop was harvested, you expanded your operation into a third bedroom, evicting the child who occupied that room in order to do so;
(vii)You installed locks on the three bedroom doors, coverings over the windows, barbed wire to the back fence and a CCTV system;
(viii)Unusually, you installed the electrical bypass yourself, apparently using knowledge you had gained as an employee of an electrical transformer manufacturer in Sydney;
(ix)You acquired the seeds, initially it appears, from a discarded cannabis plant which you found;
(x)You planted the seeds and nurtured the plants, providing them with water and nutrients;
(xi)This was entirely your operation, planned and executed by you over
a seven month period, with the purpose of financial gain. It was a well planned and executed sophisticated hydroponic setup. It was entirely
a business venture and as your counsel admitted, if it was not already implicit by your plea, it was your intent at the outset of the charged period to grow a commercial quantity of cannabis;
(xii)You had one successful crop which you harvested after about three months and sold for $7,000. You are not charged with trafficking and you will not be punished for that offence;
(xiii)When discovered, the plants were growing in the three rooms and were at three different stages of development. It was clear you had established a production line for growing cannabis crops. This indicates a determined effort on your behalf to cultivate the cannabis and maximise your returns;
(xiv)As your counsel admitted, you were the principal and organiser of this crime. The gravity of your offending is very high and falls well within the mid-range of seriousness.
21 Financial gain was your sole motivation. Evidence of financial reward received or anticipated by an offender is relevant to an assessment of the objective gravity of the offence before the court.[6]
[6]Nguyen v R (2016) 311 FLR 289, 329 [136] (Redlich JA, Tate and Whelan JJA agreeing) (“Nguyen”)
22 In a statement dated 3 July 2017,[7] Kylie Slattery, a forensic botanist, employed by the Forensic Services Department of the Victoria Police Forensic Services Centre, states that the 13 plants contained in Room 2 were bushy female plants, close to maturity and weighed 23.25 kilograms, excluding roots. When stripped, one of these plants had leaves and flowering heads found to constitute 73 per cent of its total weight. In Room 3, there were also 13 bushy female plants close to maturity weighing 21.20 kilograms and when stripped into separate components, the leaves and flowering heads of one of those plants were found to constitute 78 per cent of the total weight. The nursery room, Room 1, contained 30 plants which, had they reached maturity, would have been likely to yield in the vicinity of ten kilograms of leaves and flowering heads. That is the air-dried weight, assuming they were all females that produced a similar yield to the plants contained in Rooms 2 and 3.
[7]Exhibit P3
23 The fact that these were all female plants which had grown healthily to maturity, indicates the degree of sophistication and effort you put into this criminal enterprise and the likely returns you expected to reap, had it not been for the police detecting your crimes and seizing the crop. The photographs of the plants shown in the photo book[8] confirm their size and state of health.
[8]Exhibit P2
Personal circumstances
24 You are now aged 52 and you were aged 50 to 51 at the time of committing these offences.[9]
[9]Your date of birth is 20 May 1965
25 You were born in Vietnam and are now an Australian citizen.
26 Prior to going into custody, you resided with your wife and three children, aged 16, 12 and eight years respectively, in a large house in Taylors Hill where the offences were committed. The house is owned by your wife.
27 You were unemployed at the time of your offending and had the full-time care of your children, while your wife worked as a beautician. At the time of the offending, she was working part-time, but now she works full-time.
28 When you first came to Australia in 1992 from Vietnam, you lived in Sydney and worked for a company called Teletran, where you worked in “inventory control” and were involved in the installation of electrical transformers.
29
You were injured in 2013, lost your job and moved to Melbourne with your wife and children, where you gained employment, initially as a labourer. But because of the numbness in both hands caused by your bilateral tennis elbow condition, you were unable to maintain that employment. Since 2013, you have been on a Disability Support Pension. Your wife is employed full-time as
a beauty therapist.
30 You have pleaded guilty to these charges at the earliest opportunity and you will receive a significant reduction to the sentence I would otherwise have imposed, by reason of your plea of guilty, which has utilitarian value. I am also prepared to accept that your plea of guilty is indicative of some level of remorse for your offending. In your record of interview, you accept responsibility for your conduct and accept its wrongfulness. You also accepted that you have not provided a good example to your children, whom you sought to protect from full exposure to your crimes, by asking the police to act discreetly and having your wife remove the children from the home prior to the search.
31 I also accept that you were co-operative with police, both at the house during the search and later at the police station during your record of interview, in which you made a number of admissions. You admitted growing an earlier crop, harvesting it and selling it for $7,000. But for these admissions, the charged period would not have commenced on 3 March 2016, but more probably some three months later. I have taken this level of co-operation into account in your favour.
32 You are a person of no prior convictions which, at the age of 52, is very much in your favour.
33 I have considered the contents of a letter from the secretary of the Viet Football of Victoria (VFV).[10] You have assisted in their junior soccer development program since 2015 as a coach, working nine hours per week. You have conducted free training sessions with soccer juniors who are from multi-cultural backgrounds. I take this community involvement into account in your favour.
[10]Exhibit D2
34
I have also considered the contents of four letters, dated 23 March 2017 and
1 April 2017 from Dr Cung Tran and Dr Tuyen Nguyen from the Premium Care Medical Centre in St Albans. Dr Tran refers to your medical conditions as comprising iron deficiency since 2013, a haemorrhoid, constipation and
post-rectal bleeding. You have also suffered from bilateral tennis elbow for the past five to six years, for which you have received physiotherapy in the past and you take Panadol as required. Your other medications are Celebrex, which is a non-steroidal anti-inflammatory drug, and Ferrograd C, which is an iron supplement.
35 Your counsel did not suggest that these conditions could not be appropriately managed in gaol, or that they imposed a custodial burden on you, greater than a prisoner in normal health. Nonetheless, I have given them some weight as mitigating factors.
36 Moreover, the letter from Dr Nguyen, dated 1 April 2017, states that you are suffering from depression, which is currently “under treatment and monitoring”. I note from his qualifications that Dr Nguyen appears to be a general practitioner and is not a psychiatrist or psychologist.
37 On the plea, your counsel expressly eschewed any reliance on Verdins principles.[11] He characterised your condition as anxiety, which has developed since you were charged as a result of the circumstances in which you find yourself. Also he observed that you are “worrying for the children”.
[11]R v Verdins (2007) 16 VR 269
38 I was told by your counsel that financial hardship drove you to commit these crimes. This is not an excuse, let alone a justification, for committing serious crimes. It does provide an explanation, but is not a mitigatory circumstance.
39 I accept that being separated from your wife and children will cause significant hardship for you, but unfortunately that is a necessary consequence of you committing the serious offences of which you have been convicted.
40 The compensation order I have made in favour of Origin Energy in the sum of $15,199.02, will place further financial hardship on you and your family. However, that order is compensatory and not punitive and so does not mitigate the sentence I would otherwise have imposed on Charge 2.[12]
[12]See eg R v Braham [1977] VR 104; R v Ross (2007) 17 VR 80, 83–84 [19] (Vincent JA), 85 [31] (Chernov JA)(Whelan AJA agreeing with both); DPP v Wightley [2011] VSCA 74, [35]–[43] (Neave JA, Mandie and Tate JJA agreeing)
Application of sentencing principles
41 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
42 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
43 Parliament has set the highest fixed maximum in the criminal calendar of 25 years’. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed.
44 This offence charged in Charge 1 is prevalent in the community and as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[13] Whilst the legislation is quantity based and not harm based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the growing of cannabis by modern methods.[14]
[13]Nguyen 331 [141]
[14]Nguyen 331 [142]
45 General deterrence is an important sentencing consideration for this offence.[15] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in decisions in the Court of Appeal.[16]
[15]Nguyen 330 [139]–[140]
[16]Nguyen 326 [123]
46 Whilst general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community are not required to be given much weight at all. I am of the view that you have received a salutary lesson from the detection of your crime and the consequent proceedings. I accept the likelihood, as your counsel stated, that you have learned your lesson.
47
Nonetheless, yours is a serious crime and your culpability is high and consequently, as the Court of Appeal has indicated on numerous occasions,
a sentence of imprisonment, involving a non-parole period is, in my judgment, the only appropriate sentence which can give appropriate weight to the purposes for which this sentence is imposed. I am of the view that those purposes cannot be achieved by a sentence that does not involve your immediate confinement.
48
Your counsel submitted that a community corrections order (“CCO”) was open in these circumstances. I am of the view that your offence is so grave and your culpability so high, that that is not an option that is open to me, nor is
a combined sentence of imprisonment with a CCO open to me in the sound exercise of my discretion.[17]
[17]See Boulton v R (2014) 46 VR 308, 377 and Appendix 1 [26]–[28]
49
I accept that you have reasonable prospects of rehabilitation. You have strong family support, insight into your offending conduct and are a low risk of
re-offending.
50 As the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type,[18] or as it has also been put, an immediate term of imprisonment can only be avoided “by exceptional countervailing factors”.[19]
[18]Nguyen 330 [140]
[19]Nguyen 326 [123]
51 In my judgment, those exceptional countervailing factors do not exist in this case. You were the sole principal offender and proprietor of the crop and the equipment. You established the crop with the intention of growing a commercial quantity of cannabis. The proceeds of sale of the crop were entirely yours. Accordingly, you fall well within the mid-range of seriousness of offences of this kind. It follows that the warning given by the Court of Appeal in Nguyen v The Queen,[20] that in future, sentencing courts should, by increments, increase the sentences for offences against s.72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, applies to you.
[20]Nguyen 296 [4 iv], (Redlich JA), 358–9 [245], 365–6 [272] (Whelan JA)
52 I have given anxious consideration to current sentencing practices for the offence comprised by Charge 1 on the indictment, since the Court of Appeal decision was handed down in Nguyen, as revealed by decisions of the Court of Appeal and decisions of judges of this court.[21]
[21]Kieawkaew & Nguyen v R [2016] VSCA 269; Nguyen v R [2017] VSCA 127; McClelland v R [2017] VSCA 124; Nguyen v R [2017] VSCA 100; DPP v Chung & Ors [2016] VCC 1830 (Judge Allen); DPP v Dyer [2016] VCC 1832 (Judge Cannon) and DPP v Bennett [2017] VCC 653 (Judge Murphy)
53 So far as Charge 2 is concerned, I consider the description of such offending in Nguyen as apposite to your case. Redlich JA said:
The thefts were sophisticated and premeditated. They were for the purposes of undertaking an enterprise, the motive for which was greed. The thefts increased the profitability of the illicit enterprise and were also designed to conceal the enterprise from detection. The principles of denunciation and general deterrence were therefore of significance.[22]
[22]Nguyen 317 [89]
54 Balancing as best I can all relevant sentencing considerations, including all of the mitigating circumstances which have been put by your counsel on your behalf, I sentence you as follows:
55 On Charge 1, cultivate a commercial quantity of cannabis, you will be convicted and sentenced to three years' and nine months’ imprisonment.
56 On Charge 2, theft of electricity, you will be convicted and sentenced to six months’ imprisonment.
57
I order that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence I have imposed on Charge 1. That makes a total effective sentence of four years’ imprisonment and I order that you serve
a minimum of two years' and eight months’ imprisonment before becoming eligible for parole.
58 I certify that the period of pre-sentence detention to be reckoned as a period already served under this sentence is 13 days and I direct that that declaration be entered in the records of the court.
59
In accordance with s.6AAA of the Sentencing Act 1991, I state that the total effective sentence and non-parole period that I would have imposed, but for your pleas of guilty, is five years' and three months’ imprisonment, with
a non-parole period of four years.
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