Director of Public Prosecutions v Luan Luong

[2017] VCC 1772

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00529

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUAN DAC LUONG

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2017
DATE OF SENTENCE:	27 November 2017
CASE MAY BE CITED AS:	DPP v Luan Luong
MEDIUM NEUTRAL CITATION:	[2017] VCC 1772

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:            Cultivation of narcotic plant commercial quantity

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:            

Sentence:                 24 months' imprisonment, 13 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions at hearing For the Director of Public	Mr D. O’Doherty Ms T. Schultz	Office of Public Prosecutions
Prosecutions at sentence
For the Accused at hearing For the Accused at sentence	Mr A. Brand Ms J. Pisasale	Slades & Parsons

HIS HONOUR:

1Luan Dac Luong, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.  This offence carries a maximum penalty of 25 years’ imprisonment. 

2By way of background, you were born on 9 October 1986 and are now 31 years old.  You were 30 at the time of the offending in December last year. 

3You have no prior criminal history. 

4You are a Vietnamese citizen.  You are currently in Australia lawfully on a student visa. 

5As to the circumstances of offending, in October 2016 the Ballarat Drug Response Unit investigators commenced an investigation linked to residential premises in Baker Street, Darley.  From this point, investigators from the Ballarat Divisional Response Unit conducted intermittent reconnaissance on the address and found a maroon Subaru Liberty sedan parked on the nature strip.  The vehicle is registered in your name.

6On Monday 5 December 2016 at approximately 5 pm, members of the Ballarat police executed a search warrant at the address.  The premises were locked and police used force to gain entry.  Police conducted a thorough search of the premises and located you, Mr Luong, hiding under the insulation batts in the roof cavity of the house.  Entry was gained to the roof cavity via a manhole in the laundry of the house.  Within the premises, police located a large sophisticated and operating hydroponic system cultivating cannabis plants throughout eight rooms.

7You were arrested and had to be extracted through the exterior roof tiles.  A search was conducted by police and located in your wallet was a Victorian driver licence, confirming your identity as Luan Dac Luong, date of birth 9 October 1986, of an address in St Albans. 

8A thorough search of the premises confirmed that a sophisticated hydroponic system was in operation over eight rooms and the laundry within the premises.

9Located as a result of the search conducted at the premises, police seized items including 681 cannabis plants weighing approximately 165 kilograms, 135 heat globes (600 watt) and various associated paraphernalia. 

10Located at the address also was an unapproved electrical bypass system.  It was estimated that the cost of power lost to the energy provider was $26,902.46. 

11You made a “no comment” interview when interviewed after your arrest on 5 December 2016. 

12I now turn to your personal circumstances. 

13As I noted earlier, you were aged 30 at the time of offending, you are now aged 31 and you have no prior criminal history. 

14You were born and raised in Vietnam.  Your parents are retired.  Previously your father had worked as a carpenter and your mother ran a small village store.  You have described having a good childhood.  You have a younger brother, who suffers significant mental health issues. 

15You are well-educated, having completed a five-year business administration degree in Vietnam, and later were employed in a financial capacity for a further two years.  You worked and saved in order to further your education in Australia.

16In 2013, you came to Australia and enrolled in a general English course.  You struggled to complete this course, because of your poor English language skills.  You also struggled financially, despite receiving some further funds from your parents in 2014.  You obtained employment as a waiter and at a timberyard.

17It was in this context of financial hardship that you accepted the offer to attend to the cannabis crop.  Your role was to attend to the care three times a week and take out the rubbish.  You received $1,500 to $2,000 for your work. 

18Following your arrest in February this year, you have remained in custody on pre-sentence detention and have served 357 days in that detention, up to but not including today. 

19Whilst in custody you have engaged extensively and conscientiously in rehabilitation programs.  You have also participated with commitment to further English language skills. 

20Cultivation of cannabis in not less than a commercial quantity is regarded as a very serious crime.  It calls for the application of principles of general deterrence and, where appropriate, specific deterrence by way of punishment.  The legislation is predicated on the proposition that cannabis is harmful and general deterrence is of special importance. 

21I accept your role was that of assisting in the management of the crop.  That attendance is, however, a very necessary and important role in order for the cannabis crop to flourish. 

22You took your chances for the simple purpose of financial gain, so matters of specific deterrence are important.  Furthermore, this type of exploitation and the consequent willingness of people to assist in the maintenance of relatively sophisticated cannabis plantations is not uncommon and principles of general deterrence are particularly important in that respect also. 

23Despite the fact that you were in a situation to be exploited by other more sophisticated and resourced criminals, you knew that what you were doing was wrong.  You knew you were engaging in assisting criminals in the drug trade in Australia. 

24You are an intelligent man with a good education and you have a very good work ethic.  It is very disappointing that you came to this country and engaged in this conduct.  You had much to offer the Australian community as well as to benefit yourself and your family. 

25You remain a Vietnamese citizen and there is a high likelihood that you will be deported to Vietnam upon your release from prison.

26In mitigation, I take into account the matters urged upon me by your counsel, including:

·   your plea of guilty and the early stage at which it was entered,

·   your lack of any prior offences or any outstanding charges,

·   your good prospects of rehabilitation,

·   your relative isolation in custody in a foreign country without close family support,

·   the loss you have experienced by the high likelihood that you will never be able to again maintain an education or life in Australia, and

·   your role being at the lower end of the spectrum of this kind of offending.

27I am satisfied in this case that your role in this cultivation does call for the imposition of a sentence of imprisonment and your counsel responsibly conceded that the degree of the sophistication of the enterprise and its nature and seriousness does warrant a term of imprisonment to be immediately served.

28Mr Luong, could you please now stand? 

29On Charge 1 of cultivation of a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to two years’ imprisonment. 

30I direct that you serve a minimum period of 13 months before being eligible for parole. 

31Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 357 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records to the court.

32Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is three years’ imprisonment with a minimum period of two years to be served before eligibility for patrol. 

33At the plea hearing the Crown sought an order to which you did not consent for the taking of a forensic sample, but I have made that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order and the granting of the order is in the public interest.

34I must inform you that if at the time of the request for the forensic sample you do not consent to the taking of a mouth scrapping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be undertaken.  Do you understand that, Mr Luong?  Thank you.

35At the plea hearing the Crown also sought a disposal order to which you consented, and I have also made that order today. 

36That concludes my sentence.  Are there any other matters from either counsel?

37MS SCHULTZ:  No, Your Honour.

38HIS HONOUR:  Ms Pisadale?

39MS PISADALE:  Nothing further, Your Honour.

40HIS HONOUR:  Thank you very much.  You may remove Mr Luong. 

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