Director of Public Prosecutions v Luu

[2019] VCC 41

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00035

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC LUU

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	29 January 2019
CASE MAY BE CITED AS:	DPP v Luu
MEDIUM NEUTRAL CITATION:	[2019] VCC 41

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown
For the Accused	Mr H. Rattray

HIS HONOUR: 

1Once again, this court is required to impose a sentence for the crime of cultivation of a commercial quantity of cannabis.  Again, the cultivation occurred in an ordinary suburban house.  Once again, the accused before the court is at the lowest end of the entrepreneurial criminals engaged in this prevalent crime.

2Given that this crime has become prevalent, I have spoken in similar terms in many of the sentences that I have imposed for those at the lower end of cultivation of a commercial quantity of cannabis.  The Court of Appeal have endorsed those words and accordingly I turn to them yet again.

3On 15 June 2018, police found you, Duc Van Luu, at 18 Corangamite Drive, Corio.  When police arrived, you attempted to run.  You were caught in the backyard.  There was a total of 108 cannabis plants in five rooms set up for indoor hydroponic cultivation.  The weight of the plants was 77.23 kilograms.

4The cultivations methods deployed here were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown indoors. 
Power had been bypassed to allow high volumes of electricity to be consumed without detection and importantly, without cost.  The amount of electricity stolen at the relevant time was said to be just over $8,000.  There were a number of pieces of equipment to assist in the cultivation.  They are all expensive items, indicating there had been significant resources expended on the basis a large quantity of cannabis would be cultivated for profit.

5All the features found at this house in Corio are often found in suburban or country houses that have been converted into cannabis production operations.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

6It should never been forgotten that the cannabis grown by the cultivators ultimately has serious effects on many users and our community bears a great cost, while the entrepreneurial cannabis cultivators profit significantly. 
The entrepreneurial cultivators have, for some time, sought to avoid their own detection by having vulnerable individuals mind the crops.  These crop sitters as they have become known ensure that the equipment continues to operate.  They also provide, as has been seen in many instances, a degree of security for the crop.  Most importantly, they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.

7You are charged with cultivating not less than a commercial quantity over a period of just under a month.  That is from 9 May to 5 June 2018. 
The prosecution says that you are at the lowest end of this operation.  Your counsel submitted that you were a crop sitter.  I accept that submission.  Accordingly, I will deal with you as a crop sitter and you will be sentenced as such.  I will deal with how you became involved in this offending when mentioning matters relating to your personal circumstances.

8However, all that said, the Court of Appeal has in recent times made it clear that general deterrence is of great significance in respect of all those involved in these drug operations, including those who take it upon themselves to be crop sitters. 

9Mr Luu, you are now 62 years old.  It sets you apart from many crop sitters who have been dealt with by the courts as they are most often young, much younger than you.  Also most have come direct from their country of birth, commonly Vietnam to Australia, whereas you are a citizen of Denmark.

10You fled Vietnam in 1980 with your wife.  You and see were then ten years in refugee camps in the Philippines and in China.  You met and befriended others in the same situation as you in the refugee camps.  Some of those, I was told, were accepted and went to Canada, others to Australia.  You were accepted by Denmark and went to that country in 1990.  You and your wife had four children in Denmark.  The youngest two are still at school.  Of the eldest two, one is studying medicine and the other is in the Danish Army.

11You and your family are Danish citizens.  As a consequence of your time in the refugee camps, you have developed some sort of neurological disorder and have weakness and pain in your upper limbs from time to time but you are in receipt of the equivalent of an Australian disability pension in Denmark. 
Your means in Denmark are modest.  It seems you reconnected with a fellow refugee who was living in Melbourne it would seem in late 2017.

12Your eldest children gave you a return flight to Australia to visit him as a gift.  You enjoyed gambling, it seems, and came to gamble your small savings at the casino here in Melbourne as well as seeing your friend.  Unsurprisingly, you lost your money and then incurred a debt.

13An associate of your friend, who you only know by the name of Phu, offered $20,000 for a six week stint to be a crop sitter.  This would enable you to pay the debt and go home with something.  To your great regret and shame, you agreed.  You were in the house in Corio but planned to leave Australia and go back to Denmark on your return flight on 10 June 2018 or thereabouts. 
You were a week away from leaving.  You hoped to receive part of the $20,000 for the work that you had done in that period.

14As a person who came to this country to visit and then became involved in serious crime, unsurprisingly, you are now isolated from your family as you are held here in prison.  I do not ignore this hardship in fixing a sentence. 
You are in weekly contact with your wife but you have not told your children of your predicament.  I am told they are, not surprisingly, becoming suspicious of what is happening to you.

15You require an interpreter here in court.  I am told you speak Vietnamese and Danish but not English at all and I take this into account that you will have language problems in prison.  However, you say that you are doing as well as you can in prison, working as a cleaner and receiving some moneys which allows you to use the canteen in the prison.

16Apart from telling the police that you were to receive $20,000 for the six weeks from an associate who you only knew as Phu.  You told the police more which reveals the way that entrepreneurial drug cultivators are recruiting people like you.  You said that you were told that growing cannabis in Australia was not illegal or not dealt with seriously by the authorities.  Oddly, you were told that the authorities took a dimmer view of the theft of electricity.  You were told that if the police came, to run as you did.  Importantly, you were told that if you were caught, then you would only do a few days in detention before being deported.  That last bit of false information given to you and perhaps no doubt to other crop sitters must be firmly disabused by the imposition of a stern sentence of not days but much longer than that before deportation inevitably occurs.

17You have no prior criminal offending and at 62 years old, that is a matter very much to your credit and I have taken into account in fixing the sentence. 
You have been cooperative and you are remorseful and regretting the predicament that you are in.  Your rehabilitation will depend on you taking up responsibilities when you return to Denmark.  It is hoped that when you do return, you will do so to law abiding ways as you had prior to leaving that country.

18It seems to me that you are, by reason of not being able to tell your adult children or any of your children, I take it that you are deeply ashamed.

19You pleaded guilty at an early point and I have taken that into account in your favour.  Your sentence will be much less than it otherwise would have been had you pleaded not guilty to these matters and been found guilty of them.

20My sentence must express denunciation and deterrence to others in a practical way.  That was conceded in effect by your counsel by reason of the indication that there had to be a sentence of imprisonment with a minimum term fixed.

21I have taken into account all matters that have been put to me, in particular your limited role in this offending.

22For committing the crime of cultivation of cannabis in not less than a commercial quantity, you are sentenced to two years and two months' imprisonment. 
For committing the crime of theft of the electricity to facilitate the cultivation of a commercial quantity, you are sentenced to three months' imprisonment. 
The total sentence in this case in this case is two years and two months. 
There are no orders for cumulation as the theft of electricity was via a bypass you had nothing to do with.  You were, by your involvement in the principal crime of cultivation, complicit in the theft of the electricity.

23Having imposed a sentence of two years and two months, I fix a minimum non-parole period of 18 months.  That period is what I consider is the minimum incarceration that justice requires you to serve.  I am very mindful that you may have to serve every day of your head sentence before you in fact are deported.  In my view, all aspects of your offending and you as the offender, including your status as now not validly in Australia, warrants a short potential parole period and a higher ratio to the head sentence.

24As if often said about parole and the relationship between the head sentence and the minimum term, there are no fixed formulas.  That must be the case such that the suggestion that anything exceeding a percentage of 66 or 70 per cent do not perhaps articulate the High Court's recently expressed requirement for individualised sentencing.

25You have already served 238 days of the sentence on remand and that figure having been reckoned, I will make a declaration as part of the sentence that I have just imposed and ensure that declaration is entered into the records of the court.  There were also applications for forfeiture of equipment and I'll sign those orders.

26Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and four months with a minimum term of two years and six months.

27Is there anything else required?

28MR BROWN:  There was an application for a forensic sample.

29HIS HONOUR:  What do you say about that?

30MR RATTRAY:  I am in Your Honour's hands.  He is likely to be deported. 
I would not have thought there is much use in it.  If that strengthens the ‑ ‑ ‑

31HIS HONOUR:  It strengthens the database.

32MR RATTRAY:  No issue.

33HIS HONOUR:  So that is in the public interest.

34An application has been made that you provide a forensic sample.  That is a forensic procedure which involves a scraping of your mouth until sufficient amount of your biological material is secured so your DNA can be extracted and placed on the database.

35Having consider that application, I propose to grant it because of the seriousness of the circumstances of the offending and granting of the order is in the public interest.  I will sign that order.  What you have to understand is that when the authorities come to take the sample, that they are authorised to use reasonable force to get that sample if you do not cooperate or consent at the time.  The way through it is to cooperate.

36Anything further required for Mr Luu?

37MR BROWN:  No, Your Honour.

38HIS HONOUR:  Mr Luu, you will be taken downstairs now.  Mr Rattray has to deal with another person which we will move to fairly quickly.  So he will get an opportunity hopefully to speak to you shortly.

(Prisoner removed.)

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