Director of Public Prosecutions v Luo

[2022] VCC 686

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02649

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUAN LUO

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2022
DATE OF SENTENCE:	19 May 2022
CASE MAY BE CITED AS:	DPP v Luo
MEDIUM NEUTRAL CITATION:	[2022] VCC 686

REASONS FOR SENTENCE

---

Subject:  Trafficking in a drug of dependence, Possession of a drug of dependence

Sentence: 1 year imprisonment PSD 337.  18 month Community Corrections Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Mr H. Rattray

HIS HONOUR:

1Quan Luo, you have pleaded guilty to two charges of trafficking in a drug of dependence and the maximum penalty for each of these offences is imprisonment for 15 years.

2You have also pleaded guilty to possession of a drug of dependence and the circumstances here, alleged by the prosecution, were you did not possess the drug heroin for a traffickable purpose but for self-use.  The maximum penalty for this offence is imprisonment for one year.

3You also pleaded guilty to two related summary offences numbered nine and 10.  Summary Charge 9 is a charge of possession of a Schedule 4 poison, Sildenafil.  The maximum penalty for this offence is a fine of up to 10 penalty units.

4When arrested you were found to possess $1,591 cash suspected of being proceeds of crime.  That relates to Charge 10; possession of cash suspected of being proceeds of crime, for which the maximum penalty is imprisonment for two years.

5The circumstances of your offending are contained in a summary of prosecution opening dated 26 April of this year.  That document was marked as Exhibit A on the plea and it was read to the court by the learned prosecutor, Mr Roper.  Your counsel, Mr Rattray, accepted that the facts contained in the prosecution opening were accurate and form a proper factual basis for me to deal with these matters.  In those circumstances it is not necessary that I here refer in full, or in detail, to that which is contained in the prosecution opening, but I do so only in an abbreviated way.

6On 16 June of 2021 police and emergency services were called to an address in Springvale.  You were there and your friend, Truong Van, had suffered a cardiac arrest from which he soon after died at the scene, probably from the effects of illicit drugs.

7Police investigating his death conducted a search.  They found mixed substances which, when analysed, contained 191.87 grams of pure cocaine, 56.74 grams of methylamphetamine and 3.4 grams of pure heroin.  They also found one tablet of Sildenafil and a total of $1,591 cash, which I earlier referred to.

8The prosecution case against you, accepted on the plea, is that you trafficked the drugs because you were found in possession of them for sale.  Your phone contained evidence of messaging indicative of trafficking.  Your role was that of a transporter or courier of the drugs to enable the sale of them.  The prosecution submits, and it is accepted, that your offending falls at about mid-range for this kind of offending.  I accept that is a proper description.

9In cases like this the sentencing principles of general deterrence and denunciation are very much enlivened.  The sentence imposed must impart just punishment.  I accept your offending occurred in the context of your drug addiction.  This explains your offending but in no way excuses it.  Drug trafficking is a very serious offence, as can be seen from the maximum penalty prescribed.

10You have pleaded guilty to the charges, and that is very much to your credit, and you did so at the earliest available opportunity, at committal mention.  By pleading guilty you have saved the time and cost of a trial and you have accepted responsibility for your offending.  Because you have pleaded guilty at the earliest opportunity you are entitled to, and will receive a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.

11You were remanded in custody on 16 June of 2021 and you have served 337 days pre-sentence detention.  Your time in custody was served during the pandemic, where prisoners have had restricted rights, and I was told and accept that you have had no visitors whatsoever during your time in custody.  I accept that your time in custody during the course of the pandemic has been more burdensome on you than it ought to have been.  I turn to some matters personal to you.

12Mr Rattray filed an outline of his submission in writing (Exhibit 1), and a psychological report of Luke Armstrong which sets out much of the background of your life.  I will not set it all out here.

13You are 28 years of age.  You are a man with no prior convictions.  You were born in China and came to Australia when your mother re-partnered.  I accept that your early life, as described in the report of Mr Armstrong, was that of an impoverished life in China and I take all this into account.

14You are now an Australian citizen.  I accept that your home life has been difficult because of constant tension between your brother and your mother.

15At the time of the offending you were living with your mother and her partner in Springvale and you will live there upon your release from prison.  You have had a good education and you have some TAFE qualifications.  You have had employment in cleaning and waitering in hospitality.

16In around 2016 you began attending nightclubs with your now deceased friend, Mr Dan.  You were close friends.  Your drug use developed from there.  By the time of this offending your drug use developed into what you described to
Mr Armstrong as weekly sustained binges for a week at a time.  You told
Mr Armstrong at the time of your arrest your use of cocaine and nitrous oxide was out of control.  I accept that to be the case.  It was in this background that your friend Dan died, apparently suffering cardiac arrest.  That has had a profound effect upon you and you have been diagnosed as suffering
post-traumatic stress disorder because of it.  I accept that to be the position.  You apparently blame yourself for the death of Mr Dan.

17Mr Armstrong thought you present with features of dependent personality disorder, stimulant use disorder and post-traumatic stress disorder.  He thought you were a medium to low risk of re-offending.  I accept that to be the position and I accept that you are remorseful.

18I think your chances for rehabilitation are reasonable.  This is your first appearance in court at the age of 28.  In this case the prosecution and the defence agree that a combination sentence of a term of imprisonment and the making of a community corrections order is within the range of appropriate sentence to achieve the purposes of sentencing that I have set out above.  I accept that to be the position and I have had you assessed for the making of a community corrections order.  You have been assessed as suitable for the making of a community corrections order and as being of medium risk of
re-offending.  I have been told you have had the terms of a community corrections order explained to you by the assessor and you will agree to the making of such an order.

19On Charges 1 and 2 on the indictment, and related Summary Charge 10, you are convicted and sentenced to a term of imprisonment of 12 months.  In addition I make a community corrections order with conviction for a period of 18 months, to commence upon your release from custody, with conditions that you undergo supervision by Corrections and programs for treatment and rehabilitation from drugs and alcohol.

20On Charge 3 on the indictment, and Summary Charge 9, you are convicted and discharged.

21I declare that there has been 337 days pre-sentence detention and that 337 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

22For the purposes of s6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty I would have sentenced you to a term of imprisonment of three years and I would have ordered that you serve a minimum term of two years before being eligible for release on parole. Now, Mr Luo, can you hear me?

23OFFENDER:  Ah, yes I can, Your Honour.

24HIS HONOUR:  Now, I can only make the community corrections order if you agree to entering into the terms of that order.  Do you understand?

25OFFENDER:  Yeah.  I understand fully, Your Honour.

26HIS HONOUR:  Now, what it means is this; that upon your release from prison you will immediately commence on the community corrections order and you will be subject to supervision by Corrections.  You must comply with their directions and what they ask you to do, which will include attending courses for drug rehabilitation and alcohol rehabilitation.  You understand that?

27OFFENDER:  Yeah, I understand that.

28HIS HONOUR:  Are you prepared to enter into a community correction order in those terms?

29OFFENDER:  Ah, I'm certain.  I'm certain.  Ah, certainly, Your Honour.

30HIS HONOUR:  Very good.  Well, now are there any questions arising out of the sentence, Mr Rattray?

31MR RATTRAY:  None, Your Honour.  Thank you.

32HIS HONOUR:  Mr Roper?

33MR ROPER:  No, Your Honour.  Just simply the making of the disposal and forfeiture orders.

34HIS HONOUR:  Yes, there are - I've been asked to sign forfeiture orders and disposal orders.  They were not opposed and I'll sign them.

35MR RATTRAY:  Thank you, Your Honour.  I confirm they can be done by consent.

36HIS HONOUR:  Thank you both for your assistance with this matter.

37COUNSEL:  Thank you, Your Honour.

38HIS HONOUR:  Mr Luo, if you're still there, the ‑ ‑ ‑ 

39OFFENDER:  Yeah.

40HIS HONOUR:  You'll have to sign a document which will be sent to you in prison for signing, you understand?  It will arrive in the next day or two.

41OFFENDER:  Okay, yeah.  Understood, Your Honour.

42HIS HONOUR:  Very well, thank you.

43OFFENDER:  Thank you so much for your time.

44HIS HONOUR:  Mr Rattray, did you wish to speak with Mr Luo?

45MR RATTRAY:  If I could have a brief conversation with him I'd be obliged, Your Honour.   Thank you.

46HIS HONOUR:  Yes.  Well, I'll leave the court and my tipstaff, Ms Boswell, will facilitate that.

47MR RATTRAY:  Thank you, Your Honour.

---