Director of Public Prosecutions v Luu

[2019] VCC 981

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-02546

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH THI LUU

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	26 June 2019
DATE OF SENTENCE:	27 June 2019
CASE MAY BE CITED AS:	DPP v Luu
MEDIUM NEUTRAL CITATION:	[2019] VCC

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – cultivation of a narcotic plant (commercial quantity) – Cannabis L – young offender
Legislation Cited:	Drugs, Poisons and Controlled Substances Act 1981, Sentencing Act 1991, Migration Act1958 (Cth)
Cases Cited:	R v McLeish [1982] 30 SASR 486; R vPidoto and O’Dea [2006] VSCA 185; DPP vTokava [2006] VSCA 156; Nguyen and Pham v R [2018] VSCA 322; McClelland v R [2017] VSCA 124; Dalgliesh (a pseudonym) [2017] VSCA 360; Hassan v The Queen [2010] VSCA 352; R vBrock Mills [1998] 4 VR 235.
Sentence:	Convicted and sentenced to 30 months’ imprisonment with a minimum term to be served before being eligible for parole of 15 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For the Accused	Mr R. Alexander (Sentence) Mr J. Lowy (Plea)	Emma Turnbull Lawyers

HIS HONOUR:

1In this matter, which is indictment No.J11624569.1, Mr Nibbs appeared on behalf of the Director, Mr Lowy on behalf of Ms Luu, Mr Ray Alexander appears today.

2The one charge on the indictment is one of cultivation of a narcotic plant, in a commercial quantity.  The property upon which this material was found was at Miners Rest. The cultivation took place between 10 January 2018 and
20 June 2018, hence a period of some six months.

3The learned prosecutor tendered a prosecution opening which was accepted by Mr Lowy as the facts upon which I am to sentence his client.

4In addition, Exhibit B was tendered, being photos of the produce, if I use that word, and insofar as such produce, I signed a disposal order pertaining to it.

5This is obviously a very serious offence. Pursuant to s.72A of the Drugs, Poisons and Controlled Substances Act, the maximum period of imprisonment imposed for such an offence, cultivation of a narcotic plant in a commercial quantity, is one of 25 years.  It is defined as a Category 2 offence under the Sentencing Act.

6The background to the detection of this cultivation was a broader investigation, of which Ms Luu does not stand here accused.  However, by way of background, that lead to an observation made in January of 2018 of a large power use at 9 Baxter Street in Miners Rest.  

7In fact, by way of background, the property at that address had been purchased by Ms Luu's partner, Mr Vu, on 23 November 2017 and apparently Ms Luu shifted into that property in January of 2018.

8As I say, with such background, police attended the premises pursuant to a warrant on 20 June 2018.  On that day, they found 54 plants of cannabis weighing 129.5 kilograms.  The commercial quantity is defined under the Act as either 25 kilograms or 100 plants.  Hence as the learned prosecutor put, the commercial quantity of cannabis found on this occasion was some five times the relevant figure for a commercial quantity.

9On the day that the warrant was executed, both Ms Luu and her partner, Mr Vu were found at the premises.  They had in fact been living at the premises at the same time as cultivating this product.

10Insofar as the requirements from the prosecution, as I have said, I have signed a disposal order.  I have also signed a s.464ZF order, although as Mr Lowy said, in the circumstances given that we believe Ms Luu will return to Vietnam as soon as she has served this sentence, there is not much point to it.  But I have signed it.

11The learned prosecutor advised me that the pre-sentence detention today is now 372 days. 

12As to the offender's submissions, in particular Exhibit 3 which is the defence submissions, Mr Lowy submitted that in all of the circumstances of Ms Luu's incarceration, despite the seriousness of the offence which he acknowledged, the period served of 372 days is an appropriate sentence in the circumstances.  The prosecutor submitted that such a sentence was not within range.

13Albeit that this is a Category 2 offence under s.31 of the Sentencing Act,
Mr Lowy accepted that there must be immediate gaol.  The prosecution, having heard the plea, accepted that there was a need for moderation given the youth and the circumstances involved, but as I said, did not accept that the pre-sentence detention served was sufficient.

14Mr Lowy tendered the defence submissions, Exhibit 3, a letter from Ms Luu's parents dated 14 June 2019, Exhibit 1, which indicated that her family intended to support her, that they are aware now of their grandchild and their intent to support both Ms Luu and the grandchild when she returns to Vietnam, which they hope would be as soon as possible.  In addition were tendered in support of the plea, certificates of various courses completed in custody, Exhibit 2.

15Insofar as Ms Luu's background, those matters were set out in [6] – [12] of Exhibit 3.  She was a person who, within her own country, was apparently quite skilled by way of academic achievement, was in the higher order of education and as a result, her parents expended the money for her to come to Australia at a little over the age of 18 to study.

16This offending took place when she was 21 and hence at the time, she was a young offender.  She is now 22.  As I said, she came to Australia on a student visa and arrived in 2014 to undertake a business diploma at Deakin University.  The parents expended a sum of $15,000 for that diploma.  I am not too sure why, but some six months into that diploma, she shifted her education from Deakin to another college.

17She met the co-accused, who I understand is to stand trial next year, Trong Vu and he was 33 at the time of the offending.  As a result of that meeting, she ultimately fell pregnant and unfortunately had a miscarriage in August of 2017.  The impact on her was such that she stopped studying.  The only money for the partnership was coming from her.  She sold a car that she had and used the resources supplied by her parents.  I do not fully understand why Mr Vu was not contributing, but apparently he was on ice.  There were particular issues with the relationship and as a result, after the date of the miscarriage, she left and went to live with her friend.

18However, very shortly after, in November 2017, she became aware that she was pregnant again.  In order to assist her forthcoming child, she reunited with Vu to try and make the best of what had been a difficult relationship.

19At this time, her visa had expired because she had stopped attending the Cambridge College and she therefore became an illegal resident of this country. 

20As I say, Mr Vu bought the property at Miners Rest on 23 November 2017 where the warrant was subsequently executed.  Mr Lowy said that Ms Luu moved in in January of 2018 and was found there the day of the warrant.

21There was an issue as to Ms Luu's precise role.  Mr Lowy submitted that I should see her as being particularly subjected to the influence of the elder partner, who was an addicted person, that she had tried to support him in order to make a go of this relationship, that she was in a very difficult position because given her background and the culture of her background and philosophy of her parents, it was impossible for her, she thought, to advise her parents that she was pregnant, that she could not go home and therefore was placed in an invidious position.

22It was accepted that, by the plea, Ms Luu pleads guilty to being responsible for cultivation of this product for a period of six months.  Within that, it was put that she was not actually involved in the tending of the product.  However, given the plea, despite the uncertainty of her precise role, clearly she was living in the premises, was aware of what was going on and has pleaded guilty on that basis.

23Albeit that one is unable to precisely determine her role, as I said yesterday to Mr Lowy, this matter was referred to in The Queen v McLeish [1982] 30 SASR 486, [492] where the Court said as follows - I say this accepting that we are looking at a role that is at the bottom level. The Court said:

'It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of a prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue as unlawful organisation for purveying drugs, as well as potential of recruits, the simple truth that a man [in this case, a woman] who participates in such an organisation at any level [and I stress, at any level] must expect and will receive a heavy penalty.'

24Given the amount, that is, in this instance five times the commercial quantity level, the seriousness is obvious, especially when one accepts that we are dealing with a regime under the Drugs, Poisons and Controlled Substances Act, which is a quantity regime, as set out by the Court of Appeal in the case of Pidoto and O'Dea [2006] VSCA 185, [34] and [62].

25At [62], the Court said this:

'It is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved.'

26Of course, in this case, one would need to substitute in that quotation the word 'cultivation' for trafficking.

27Ms Luu, the penalty in regard to your offence is obviously one of great significance in this sentence.  I consider therefore the objective seriousness at
mid-level, albeit I cannot be precise as to your role.

28As I said, Mr Lowy did not haggle with the situation or its seriousness and accepted because of that, the need for general deterrence, specific deterrence and denunciation.  However, in the plea, he put to me that I also must take into account your particular remorse shown by your plea of guilty, its utilitarian benefit and the fact that you were, at the time of this offending, a young offender.

29Mr Lowy relied upon the principles set out in Mills [1998] 4 VR 235 where the court said that where one is dealing with a young offender, rehabilitation is a very important aspect. This matter of course has been confirmed subsequently in Tokava [2006] VSCA 156, [51], by the President of the Court of Appeal.

30You have come to the Court with no priors, which is not unusual in these type of offences.  However, the fact is you have an unblemished character to this date.

31The circumstances of your time on remand were put to me and are taken into account by me.  It is noted you have no family here.  Apparently there is no relationship now with the co-accused.  You have had, and no doubt do have, problems with the language.  You gave birth to your child, Chloe in gaol on
22 August and are located in what is known as 'The Baby Unit' in gaol.  As I say, you are an illegal resident and Mr Lowy said, of course, what you seek to do, as set out in your parents' letter, is go home as soon as possible.  Clearly that will happen because of the seriousness of this matter and the impact of the Migration Act and the current Minister's views in regard to that.

32I accept that there was a particular role played by the co-accused in this matter.  I accept the circumstances that you found yourself pregnant, that you could not go home and that you stayed together with your co-accused for the sake of trying to make the relationship work considering you were pregnant.

33I also take into account that you being deported by the Commonwealth will mean the end of a dream you may have had.  No doubt, the end of your parents' dream who expended $15,000 on your education.  However, it is appropriate to note that your family will now accept you back.

34Mr Lowy, in his submission, put to me that the pre-sentence detention should be sufficient in the circumstances and put to me a number of cases.  In that regard, I also refer to the case of Nguyen and Pham [2018] VSCA 332 to which I have referred, where the Court of Appeal referred to a case of McLelland v R [2017] VSCA 124, and passed a sentence for similar circumstances of three years with a minimum of two.

35The circumstances of similar sentencing are of course one matter that this Court has to take into account, and I take into account matters put to me by
Mr Lowy in the manner as referred to in the case of Hassan [2010] VSCA 352, [49] and [52].

36In the end, of course, pursuant to the directions of the High Court in Dalgliesh (a pseudonym) [2017] VSCA 360, one must, as this Court has, always try to deliver individualised justice based upon the facts of the case relevant to you, Ms Luu, and I do take into account all those matters.

37However, given the seriousness of the charge, albeit taking account of your prior good character and the fact of your youth and the fundamental importance of encouraging your rehabilitation and being as merciful as I can, I cannot however accept your counsel's submission that the period served is sufficient.

38In the circumstances, I therefore intend to sentence you as follows.  If you would stand please.

39You will be sentenced to a period of imprisonment of two and half years, with a non-parole period of 15 months imprisonment.

40Pursuant to s.18, the 372 days you have served to date will be declared as service of this sentence and that declaration will be entered in the records of this Court.

41Madam Interpreter, could you explain to Ms Luu that had she not pleaded guilty, the Parliament requires me somehow to disregard all of the factors that I have just referred to and explain to you just the consequences of one factor only, and that is, had you not pleaded guilty, the sentence I would have passed on you is one of three and a half years with a minimum of two years and four months.  Ms Luu, you see that the discount that I have given you is that you now actually get a sentence of two and a half years with a minimum of 15 months. The reason for that reduction is, doing as best I can to comply with Parliament's wishes, the fact that you pleaded guilty.

42Yes, the prisoner can be taken away shortly.  Gentlemen, any other matters?

43MR NIBBS:  No, Your Honour.

44HIS HONOUR:  Yes.  Just take a seat.  Yes, the prisoner can be taken away.

45MR ALEXANDER:  Your Honour, if I may just approach the witness just before she is taken away?

46HIS HONOUR:  Yes, certainly.  Yes.

47MR ALEXANDER:  Thank you, Your Honour.

48HIS HONOUR:  What is 372?  That is about 11 months, is it?

49MR NIBBS:  It is just over because 365 days is a year.

50HIS HONOUR:  Six and a half.  Yes, so it is about - - -

51MR NIBBS:  So it is about two months, three weeks.

52HIS HONOUR:  Three months to go.

53MR NIBBS:  Two months, three weeks.

54HIS HONOUR:  Yes.  Mr Alexander, as best as I can work out, it is another two months and three weeks to serve.

55MR ALEXANDER:  I am just going through it.  Thank you, Your Honour.

56HIS HONOUR:  If necessary, I will add to the transcript that I expect, as the Court has been advised, that at the end of the non-parole period that arrangements will be made for her to be immediately deported.

57MR ALEXANDER:  Thank you, Your Honour.

58HIS HONOUR:  If you want to add that, you can.

59MR ALEXANDER:  I will explain that to her.  Thank you, Your Honour.

60HIS HONOUR:  Can I say, Mr Alexander, why I say that is that there was some concern by your counsel about that and all I can indicate is that I have taken that matter for another occasion to the head of the Parole Board, Judge Pullen, who says that as far as they are concerned, as soon as the minimum period is done, no reason why a person cannot be deported immediately.

61MR ALEXANDER:  Thank you for that, Your Honour.  Thank you, Your Honour.

62HIS HONOUR:  Thank you, Mr Alexander.  Yes, always difficult with the language.

63

MR ALEXANDER:  Certainly, Your Honour.  Good luck.  Thank you,

Madam Interpreter.

64INTERPRETER:  Thank you, Your Honour.

65HIS HONOUR:  Yes, adjourn the court please.

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