Director of Public Prosecutions v Luu

[2020] VCC 1883

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01070

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHI LUU

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	DPP v Luu
MEDIUM NEUTRAL CITATION:	[2020] VCC 1883

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison (For Plea)	Office of Public Prosecutions
Mr N. Zvekic	Office of Public Prosecutions
(For Sentence)
For the Accused	Mr C. King	TBJ Law
(For Plea)
Mr R. Fida	TBJ Law
(For Sentence)

HIS HONOUR: 

1I am going to impose a sentence of imprisonment of 20 months with a minimum term of 10 months.  I am going to declare, unless I am corrected, 170 days of pre-sentence detention.  On my arithmetic that is what it is.  I have told you, Mr Luu, what the sentence is.  I would ask you to listen courteously to my reasons for that sentence and then I will formally do it.

2Chi Luu, you are to be sentenced for one charge of cultivation of the narcotic plant cannabis in a commercial quantity. The maximum sentence is 25 years' imprisonment. Under s.5(2H) of the Sentencing Act there must be a custodial sentence.

3You pleaded guilty before me on 24 November.  When interviewed by police on 10 June 2020 you made what I see to be a candid confession.  This included the admission of for how long you had attended at the cannabis crop premises.  That evidence is solely dependent on your admission.

4After committal on 1 October your matter was listed for plea hearing in this court, short of six months after your arrest. 

5You receive the benefit of your early plea of guilty and a high level of cooperation in the proceeding.  Your plea has facilitated the interests of justice, accepts responsibility and expresses remorse.

6At your plea hearing, also on 24 November, Mr Davison for the Crown tendered a written summary of prosecution opening.  Mr King for you tendered the reports of forensic psychologist Carla Lechner dated 14 August and 27 October 2020 and letters of character reference.  Both counsel provided written outlines of plea submissions.  Mr Davison's outline identified the comparative sentencing case of R v Nguyen [2017] VCC 595.

7The circumstances of your offence are set out in the tendered Crown opening, which is Exhibit A.  My own summary therefore may be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown. 

8On 10 June 2020 police raided premises at Rowan Street, Croydon.  You and another man, named Ha, were found and arrested there.  Search revealed a typically sophisticated hydroponic cannabis crop.  It was set out in four rooms.  There were lamps, filtered exhaust fans, water pumps, other equipment and nutrients.  An electrical system bypassed the legal supply.  In total there were 94 plants, short of the commercial quantity threshold of 100 plants.  The collective weight was 84 kilograms, well above that threshold of 25 kilograms.

9The premises was leased under a false name.  It is not alleged that you were part of that.  A Honda motor vehicle used by you was parked in the driveway.  Inside were some bottles of liquid fertiliser.  In interview you admitted attending the premises over about one and a half months.  The prosecution concedes that your role fitted that of a so-called crop sitter.  There is evidence of some tending or cultivating activity.  You told forensic psychological Carla Lechner that you were promised $5,000 for that six weeks' work. 

10You are a 22-year-old Vietnamese man presently awaiting this sentence in remand custody.  You are the youngest of three children.  Your parents live in Vietnam.  Since 2017 you have suffered cerebral palsy affecting the left side of your face.  You came to Australia six years ago on a student visa and therefore when 16.  That remains valid and you have engaged in a number of courses throughout the time.  Poor English, isolation and developing depression have disadvantaged you and you have not completed any of them.

11Part of the context for your recruitment, not uncommon in this category of case, was financial difficulty.  For example, your visa conditions prevented employment beyond 20 hours per week.  You worked at a 7‑Eleven store.

12You will likely be taken into immigration detention upon parole release and then deported.  This is not a case of hardship arising out of that.  You wish to return to the support of your family in Vietnam.  You should be sentenced to a head and minimum term in accordance with recognised, relevant sentencing considerations.

13Psychologist Carla Lechner diagnoses 'major depression disorder and anxiety' pointing to symptoms such as sleep disturbance, irritability, agitation, loss of interest and pleasure and feelings of sadness.  This is partly reactive to your present circumstances, but also part of your situation when you chose to offend.  Ms Lechner purports to describe a connection between this and your offending;  for example, stating that the level of your depression at time of offending was or appears to have been 'a contributing factor to poor judgment and decision-making'.

14I find that this evidence falls well short of making relevant Verdins principles related to reduce moral culpability and lesser importance of purposes such as denunciation and deterrence.  Your psychological condition, at time of offending and now is relevant as part of the personal context for your sentence.  I find under Verdins that imprisonment has and will be harder for you because of it and your relative isolation.  There is one sister living in Melbourne.  It is not clear what level of contact and support she gives.

15Ms Lechner states that you presented to her as of average or low-average intelligence.  You have no prior convictions. 

16Cultivation of cannabis in commercial quantities is a serious offence seen to be prevalent and part of a significant community problem.  Drug use and its trade impacts on the community.  There is high profit for the principal entrepreneurs.

17The circumstances make relevant sentencing considerations and purposes of moral culpability, deterrence, here particularly general deterrence, the need to condemn and proportionately punish the offending.  General deterrence is a particularly relevant purpose.  There is the need for a sentence of imprisonment.

18Balanced against or within such considerations are a number of mitigating or moderating factors.  Here they include the following. 

19(1)   Your plea of guilty and level of candour in interview and cooperation.

20(2)   To some extent the circumstances of offending.  For example, you were at the low,  exposed end of the enterprise.  Although your motive was financial benefit, I accept that your recruitment occurred in difficult circumstances for you.   

21(3)   You should be seen as a person of otherwise good character.  That is not uncommon in your role and may be seen as of lesser weight in offending such as this.  However, you are entitled to an appropriate consideration of good character.  

22(4)    At  22 you are still young.  That to some extent explains your involvement in the offence and justifies emphasis upon rehabilitation.  I see you has having genuine prospects for that.  Specific deterrence is of lesser importance.

23(5)   Your personal circumstances.  This includes your mental health condition and, as I have said, relative isolation here and in prison.

24I have considered the comparative sentences raised; but I also bear in mind the need to sentence individually to your case. 

25Having considered what I see to be the relevant matters, I sentence you to 20 months' imprisonment with a minimum term of 10 months before eligibility for parole. I declare pre-sentence detention under s.18 of the Sentencing Act of 170 days already served.

26Under s.6AAA had you not pleaded guilty I would have imposed a sentence of two and a half years' imprisonment with a minimum term of 18 months.  Are there other matters, disposal orders or anything like that, Mr Zvekic?

27MR ZVEKIC:  Yes, Your Honour, there is a disposal order sought for the cannabis and electrical bypass. 

28HIS HONOUR:  All right.  Well, I make - are they two separate orders or is it the one order?

29MR ZVEKIC:  It's in the one document, Your Honour.

30HIS HONOUR:  I'll sign that in chambers and I'll make the order.  Is there anything else I need to do?

31MR ZVEKIC:  I understand not, Your Honour.

32HIS HONOUR:  All right, good.  Thank you.  We'll turn people off now.  Thank you very much for your assistance.

33MR FIDA:  Thank you, Your Honour.

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