Director of Public Prosecutions v Lu
[2013] VCC 2031
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00242
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHOU LONG LU |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 December 2013 | |
CASE MAY BE CITED AS: | DPP v Lu | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2031 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Doyle | |
| For the Accused | Ms K. Muran |
HER HONOUR:
1 Shou Long Lu, you have pleaded guilty to one charge of trafficking in a drug of dependence. The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. The Prosecution made application for the retention of a forensic sample previously taken from you and also for disposal of certain items. These applications were consented to.
2 Your offending was detected in the course of a police investigation into the trafficking of heroin in the Eastern suburbs of Melbourne. A number of people were arrested and charged as a result of this investigation. Amongst these people are you and your two co-accused, Raymond Lee and Mingye Zhou. I sentenced Mr Lee on 12 December 2012. In respect of the heroin trafficking Mr Lee was sentenced to 2 years imprisonment with a non-parole period of 9 months. I have sentenced My Zhou today. In respect of the heroin trafficking Mr Zhou was sentenced to 2 years and 8 months imprisonment.
3 You and Mr Zhou disputed the way in which the Prosecution described the role of each of you in the trafficking of heroin. A contested plea hearing was held and evidence was given by Mr Lee and others. I made certain findings including that I was not satisfied beyond reasonable doubt that the role of you and Mr Zhou was at a higher level than that of Mr Lee.
4 I am sentencing you on the basis that the circumstances of your offending were as follows. Between 24 June 2011 and 24 October 2011 you were involved with Mr Lee and Mr Zhou in the trafficking of heroin to other persons including Ms Brooke Sherriff. Ms Sherriff was a street level seller of heroin. Ms Sherriff would obtain heroin from your group by ringing and ordering an amount. A person would then meet her at a pre-arranged place with the drugs. You assisted in that process apart from the period between 30 August 2011 and 12 October 2011 when you were in China. It is estimated that approximately 320 grams of heroin was trafficked by your group in the four month period. As I have said, this was an organised operation above the level of street trading.
5 I am sentencing you on the basis that it is not known where your group obtained the heroin from. Police found heroin in Mr Zhou’s flat when they executed a search warrant on 24 October 2011. That heroin was found to be 14% pure. There is no evidence that you were cutting the heroin. I am sentencing you on the basis that your group was supplied with heroin of street level purity by an unknown supplier or suppliers who were closer to the source of the heroin than you three.
6 In sentencing you I have taken into account your personal circumstances. You are 25 years old. You were born and raised in China. You came to Australia in 2006. Your mother had married an Australian man whom she had met in China. The marriage lasted only a matter of months after you came to Australia. Your step father was violent towards your mother and you and she were made to leave the home in Queensland. In 2007/2008 you came to Melbourne and began tertiary studies. Your mother moved to Melbourne in 2009. Your mother bought a house in 2010 where you both live. You completed an Advanced Diploma in International Business in 2011. You worked as a waiter while studying but have not worked since finishing your studies.
7 Your mother has not been able to continue her employment due to problems with her shoulder. She has ceased driving and is being treated for depression. She was in court to support you. You have no other family in Australia.
Your counsel relied in mitigation on:
a) Your youth;
b) Your lack of prior criminal history or subsequent offending;
c) Your admissions to police;
d) Your plea of guilty;
e) The delay in this Matter being finalised;
f) Your good prospects of rehabilitation;
g) The impact of a conviction on your future employment;
h) The uncertainty of your status as a permanent resident once you are convicted; and
i) The difficulties you would encounter in prison given your limitations in English.
9. Your counsel submitted that the appropriate sentence would be a suspended sentence of imprisonment. Your counsel addressed the issue of parity and submitted that such considerations would not stand in the way of any sentence imposed on you being suspended. Your counsel said that you now realise the seriousness of your offending. Your counsel submitted that a suspended sentence would meet the sentencing considerations of general deterrence and denunciation and would recognise the importance of your rehabilitation and would reflect your personal circumstances.
10. The Prosecutor agreed that I should take into account your youth and the uncertainty of your resident status but submitted that only a sentence of imprisonment to be served immediately would meet the sentencing considerations of denunciation, punishment and general deterrence. He submitted that a suspended sentence would not give proper effect to parity principles in the light of the sentence imposed on Mr Lee for the heroin trafficking.
11. Mr Lu, I repeat what I said when sentencing Mr Lee and Mr Zhou. Your offending was very serious. The maximum penalties reflect that. The distribution of illegal drugs for profit is an evil trade. Your were involved to make money. Those who make money out of selling and distributing illegal drugs do so by exploiting the vulnerabilities of others. The use of illegal drugs causes harm to individuals, families and the community as a whole.
12. I have taken a number of matters into account in mitigation. You are relatively young. You have no prior criminal history. You clearly are a person of some capacity and intelligence. The references provided demonstrate that you have been a good friend and kind to others. You continue to have the support of your mother. Your counsel says you realise the seriousness of your offending. You have not reoffended since this offending. You do not have issues of drug addiction. I consider your prospects for rehabilitation to be reasonably good. Your youth means that your rehabilitation is a very important sentencing consideration.
13. I have taken into account that you have some limitations in English and that you have no family in Australia other than your mother. I have also taken into account that any period of imprisonment will be more onerous for you because of your concern about your mother’s health, isolation from other family, concern about your immigration status and difficulties if you are deported while your mother wishes to remain in Australia. I have taken into account, as I have said, that you have some limitations in English although note that you have sufficient English to have been able to gain qualifications at a tertiary level.
14. You are entitled to a significant discount for your plea of guilty although your plea was not made until the second committal date and after Mr Lee had made his statement. You made limited admissions to the police. By your plea you have saved the time and expense of a trial. I am satisfied that you have accepted your legal responsibility and regret this offending but I do not conclude that you are remorseful.
15. I have also taken into account that this conviction will have a negative impact on your ability to work in the area of international business. A significant period of time has elapsed since you were arrested and the matter has been hanging over your head. As I have said, you have not offended in that time. I have taken those matters into account.
16. Drug trafficking of the type you engaged in warrants a sentence of imprisonment for the purposes of denunciation, punishment and general deterrence. As I have said before, it is to be hoped that other people will factor in the risk of imprisonment when deciding whether or not to get involved in the trade in illegal drugs. Hopefully at least some people will decide against becoming involved because they understand that they are likely to go to prison if they are caught.
17. Specific deterrence ought to have some albeit reduced weight in your sentence. I accept that specific deterrence has been achieved already to a certain extent.
18. I consider that a wholly suspended sentence would not properly reflect the seriousness of your offending and the need for general deterrence, denunciation and just punishment. Such a sentence would offend against principles of parity in respect of Mr Lee even after taking into account matters relevant to each of you. Your rehabilitation ought to be given significant weight in the sentence to be imposed but not to the extent of overwhelming the other sentencing considerations particularly the need for general deterrence.
19. In fixing the appropriate sentence I have taken into account the principles of parity and proportionality. I have set a non-parole period which reflects considerations of your age, potential difficulties in custody and prospects for rehabilitation.
20. Charge 1 of trafficking in a drug of dependence you are convicted and sentenced to a term of imprisonment of 36 Months.
21. I fix 19 months as the period you are required to serve before being eligible for release on parole. I declare that you have served two days of this sentence by way of pre-sentence detention to be deducted administratively.
22. But for your plea of guilty I would have sentenced you to a term of imprisonment of 4 years with a non-parole period of 2 years and 9 months.
23. I make the orders for disposal and retention of certain items and the retention of the forensic sample taken from you. I have made the order for the retention of the sample because of the seriousness of the circumstances of your offending, your consent to the order and the public interest.
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