Director of Public Prosecutions v Luu

[2018] VCC 1592

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01586

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG LUU

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 September 2018
CASE MAY BE CITED AS:	DPP v Luu
MEDIUM NEUTRAL CITATION:	[2018] VCC 1592

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	Ms S. Hassan	Office of Public Prosecutions
For the Accused	Ms A. Liang	Giorgianni and Liang Lawyers

HER HONOUR:

1Cuong Kim Luu, you have pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity, the maximum penalty for that offence is 25 years' imprisonment; you have further pleaded guilty to one charge of trafficking in a drug of dependence, the maximum penalty for that offence is 15 years' imprisonment and; finally, you have pleaded guilty to one charge of knowingly possessing proceeds of crime, the maximum penalty for that offence is also 15 years' imprisonment.

2The facts which found the charges are set out in the prosecution opening dated 17 August 2018.  You were, at the relevant time, aged 34.  You are a Vietnamese national.  You arrived in Australia on 2 August 2016 as a crew member on a Vietnamese registered ship.  You have resided illegally in Australia since that time.  You have largely been unemployed and unable to receive any form of financial assistance.  You were, at the relevant time, residing at 18 Druid Street, Golden Square, where you were a tenant. 

3On 7 May 2018, police attended in relation to another matter and noted a strong smell of cannabis emanating from the premises.  You met the police at the laundry door and there were difficulties in communicating due to your lack of English.  But you were repeatedly saying, "I'm sorry". You were asked by the police if there were any drugs growing in the house.  You immediately responded, "Yes".

4The police secured the premises and then obtained a search warrant.  Upon execution of the warrant, the bedroom, study, lounge, dining and kitchen areas were discovered as all being utilised for the cultivation of cannabis.  In total, there were 111 plants which weighed a total of 140.56 kilograms.  In addition, dry material was located in a black garbage bag, weighing 5.21 kilograms, which were clippings from a prior harvest.

5You were arrested and interviewed with the assistance of an interpreter.  You made full admissions to cultivating and trafficking in cannabis.  You admitted having been involved in the harvest of 21 plants which resulted in the sale of 13 and a half bags of cannabis for a profit of some $25,000 between 7 April and
7 May 2018. 

6You told police that the majority of the money was sent back to Vietnam to support your sick mother and family.  You admitted that the $707.60 which was located in your wallet was proceeds from the sale of cannabis.  You admitted to police that you had been paying rent on the Druid Street property for some six to seven months to you residing there. 

7You told police you had visited the property prior to moving in, learning how to cultivate cannabis.  The cultivation to which you have pleaded spans about two and a half months and dates back to the planting of a number of plants subsequent to the harvest to which I have already referred. 

8You told police that the people who had initially set up the grow house had returned to Vietnam.  You said that some of the plants which were located in the second room were planted by you, as I have said, after the completion of the harvest, to which I have already referred.

9Your role was clearly above that of a crop-sitter; you were actively involved in the cultivation and it was you who stood to profit.  This matter proceeded on the basis that it was always going to be a plea.  Your admissions were the basis of a number of the charges to a large degree. 

10You pleaded guilty at the earliest available opportunity at a committal mention in August of this year and your plea was then listed in this circuit.  You have been in custody since the date of your arrest.  You have no criminal history and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character. 

11You are now aged 34, having been born in Vietnam on 12 November 1983.  Your family still reside in Vietnam.  Your father passed away in 2015 from cancer, and your mother, brother, wife and two children reside in Hai Phong.  You married in 2008 and your children are aged six and eight years. 

12As regards your education, you completed the equivalent of Year 12 and then studied hospitality.  From 2005 to 2016, you were employed as a chef on a Vietnamese registered ship.  As already noted, you illegally stayed in Australia after the ship docked, with the intention of working, initially legally, and sending money back to support your family. Prior to engaging in the offending which brings you before this court, you had worked for short periods of time as a handyman and in general labouring.  Your family, it seems, were in difficult financial circumstances due, at least in part, to bills associated with your father's treatment prior to his death.  Your wage was insufficient to support the family and money had been borrowed, placing further pressure upon you as, really, the sole support. 

13It is conceded upon your plea that you were the principle cultivator at the property that you were discovered at by the police, but it is not put that you were involved in the initial set up.  What is clear is that you received financial benefit from the sale of cannabis.  In essence, you took a chance to make what you no doubt thought was easy money to assist your family and you were caught.  You now face the consequences before this court.

14In relation to your prospects of rehabilitation, I think they would properly be described as good, having regard to your admissions, plea, age, lack of prior history, and the likely deterrent effect of your time in custody. 

15Your counsel points to a number of matters you are entitled to have taken into account in mitigation. 

16Firstly, your plea of guilty and the stage at which that plea was entered.  There is the utilitarian benefit of saving the community the time and expense of a trial.  I accept for the purpose of sentencing that you are entitled to a full discount on the basis that your plea also demonstrates remorse in circumstances where you made substantial admissions which, in effect, found a large part of the way in which you were charged. I accept that your plea should be used as evidence of remorse in these circumstances. You have never resiled from taking responsibility for your actions. 

17You have spent over four months in custody on remand and the experience of prison itself is likely to have a significant deterrent effect for a person who has not, prior, been placed in a custodial setting. 

18I have been told that you have worked as a laundry billet five days a week since you were incarcerated.  You have also engaged in education and have obtained two certificates in relation to courses relevant to substance abuse.  I accept for the purpose of sentencing that the burden of imprisonment is increased as a result of your isolation from your family and language barriers.  You have apparently only had two visits from a friend during your period of remand. 

19The prosecution submits that the only disposition open is an immediately servable term of imprisonment.  Your counsel, quite properly, concedes that this indeed the only disposition open. 

20As well as matters personal to you, to which I have referred, including your good prospects of rehabilitation, I take into account other relevant sentencing considerations.  General deterrence must be given weight in matters such as this.  I must seek to deter not only you, but others who would engage in such conduct which seriously damages the lives of members of our community.  I regard this as an important factor to be weighed, of course, with other relevant sentencing considerations.

21Specific deterrence can be given less weight in light of your history and demonstrated remorse.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment. 

22These are serious offences.  In the circumstances, I have no option but to impose custodial terms.  You are convicted and sentenced as follows, Charge 1, cultivating a narcotic plant in not less than a commercial quantity, three years; Charge 2, trafficking in a drug of dependence, 12 months, six months cumulative; Charge 3, knowingly possess proceeds of crime, one month cumulative. 

23That is a total effective sentence of three years and seven months.  I direct that you serve two years and four months before becoming eligible for parole.  I direct that 143 days be reckoned as served.  I direct that it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to total effective sentence of five years with a minimum of three years and six months. 

24I make a forfeiture order in relation to the money seized, $707.60, and a disposal order in relation to the drugs and instruments.  Counsel, is there anything further?

25COUNSEL:  No, Your Honour.

26HER HONOUR:  Thank you very much.  Your instructor will forward the drafts of those orders so that they can be made.

27MS HASSAN:  He will, Your Honour, yes.

28HER HONOUR:  I thank both counsel for their assistance and I stand down.

29MS HASSAN:  Thank you.

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