Director of Public Prosecutions v Luu
[2018] VCC 896
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-00169
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANH VAN LUU |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2018 | |
DATE OF SENTENCE: | 15 June 2018 | |
CASE MAY BE CITED AS: | DPP v Luu | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 896 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence – cultivation of a narcotic plant in a commercial quantity – low level offending – imposition of a jail term.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C Farrington (Plea) Mr J Valos (Sentence) | Valos Black & Associates |
HER HONOUR:
1 Danh Van Luu, you have pleaded guilty before me to cultivation of a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant. The charge is serious and that is reflected in the maximum penalty imposed by Parliament, and that is, 25 years’ imprisonment.
2 I shall now sentence you on the basis of the opening that was read out by the prosecutor at the plea hearing.
3 At the time of the offending you were aged 25. You are now 26. You are a Vietnamese national. You came to Australia at age 23 and you were a holder of a student visa. You studied English on your arrival. You met Michelle Tran in March of 2014 and you married her in May of 2017.
4 At the time of your arrest, you were on a temporary bridging visa awaiting the outcome of your application for a spousal visa. You had completed your English studies and you were working casually as a handyman and a farm hand picking strawberries.
5 You were involved in this offending with another, Thuan Thi My Tran.
6 Ms Tran pleaded guilty to the same charge and was sentenced by this Court on 1 March 2018 to nine months’ imprisonment.
7 A number of mitigating factors were taken into account in her favour, namely:
(i) she entered a plea of guilty at the earliest opportunity at committal mention;
(ii) her plea was of real utility;
(iii) she avoided the cost of an expensive trial and therefore facilitated justice, and she received a sentencing discount accordingly;
(iv) she was a person of relative youth and her rehabilitation was of significant relevance;
(v) she had no prior criminal history;
(vi) whilst in gaol, she experienced difficulties given her linguistic and cultural differences;
(vii) she was an unlawful non-citizen also of Vietnamese background and it was accepted that she would be deported upon the completion of her sentence.
8 Ms Tran’s case was not one where the risk of deportation weighed heavily upon her as she did not have a realistic expectation of remaining in Australia given her migration status. However, it was the case that with a conviction of this nature that she lost the opportunity to ever return to Australia.
9 Whilst in custody, she was productive working as a kitchen hand.
10 She was found to be genuinely remorseful and she sincerely regretted her involvement in the offending.
11 She was sentenced on the basis that her role in this cultivation of a cannabis crop was at the lowest level. The prosecution agreed she assisted with the crop for 40 minutes on the one day only, namely 10 July 2017. She was therefore sentenced on the basis of the very lowest level of offending with respect to this serious charge.
12 Police arrested you at the same time as Ms Tran at the premises at 7 Hayden Avenue, Frankston. The property is a residential one. When arrested, police located a hydroponic cannabis crop that had been established in six rooms of the house, that had been converted as grow rooms. They found a sophisticated hydroponic set-up in each room containing lightshades, light globes, electrical transformers and exhaust fans with carbon filters or extractor fans with charcoal filters. In total, 229 cannabis plants weighing approximately 36 kilograms were found by police.
13 As with Ms Tran, the prosecution accept your role was limited to the one day only, namely 10 July 2017, and further, you are to be sentenced as a “crop sitter”.
14 When arrested, you were found to be in possession of a white coloured Apple iPhone that contained several photographic images of various brands of hydroponic plant fertilising containers.
15 The prosecution submitted that your involvement was at a marginally different level than Ms Tran.
16 Given the absence of evidence against you concerning your involvement in the crop, and the fact that is conceded that your involvement was limited to 40 minutes on the one day only, I am sentencing you on the basis that you played the same role as Ms Tran, that is, that you were attending to the crop at the behest of others unknown who established the crop to assist in either maintaining or monitoring the crop for that short period only.
17 In sentencing you, I have to have regard for the need to emphasise general and specific deterrence, just punishment and denunciation.
18 By way of background, you were born and raised in the Nghe Nam province, located on the north central coast of Vietnam. You are the youngest of three children. There are two older brothers aged 33 and 40 respectively. They live in Vietnam together with your elderly parents.
19 Your wife, Michelle Tran, was present at the plea hearing and is supportive of you. She was born in Australia and is an Australian citizen. Her entire extended family live in Australia. She is currently employed working for an aunt and manages a nail salon. It is accepted by the prosecution that you are at risk of deportation and/or your visa being cancelled under s501 of the Migration Act 1958 if you are sentenced to a term of 12 months’ imprisonment or more, as you will be treated as having a substantial criminal record and would fail the character test.
20 That fact means that the burden of imprisonment weighs more heavily upon you than for someone who faces no such risk.
21 This is a case where I am satisfied that you did not enter Australia for the sole purpose of criminal activity. Prior to this commission of this offence, you intended to remain in Australia with your wife.
22 Therefore, the prospect of deportation does mean that you would suffer a severe additional punishment as you had aspired to make Australia your home, and I have taken that into account.
23 I have also taken into account that you entered a plea of guilty. Notwithstanding its late stage, there is still utility in your plea. The matter was the subject of a contested committal hearing where the informant only was cross-examined. Ultimately, your matter settled. Following committal, you were arraigned on 7 June 2018. You too have avoided the unnecessary expense and inconvenience of a trial and therefore have facilitated justice. Your sentence will be discounted accordingly.
24 Following your arrest you have been in custody on remand. You have used your time productively. You are employed as a billet in the unit where you are being held, undertaking cleaning tasks. The role of billet is a responsible one. You have continued to receive regular visits from your wife whilst you have been on remand.
25 In addition, I have taken into account the fact that you have no prior criminal history and you are considered to be otherwise a person of good character.
26 I have had regard to the objective gravity of your offending. I do consider that this is at the lowest level possible for this serious offence.
27 I have had regard to the sentence imposed upon on Ms Tran, your co-accused and the principles of parity. The only difference between you two is the fact that she entered a plea of guilty at an earlier stage. On your behalf, I have also taken into account your particular migration status and the issues that flow from that.
28 Mr Farrington, on your behalf, submitted that it was accepted that you will receive a sentence higher than the co-accused due to the difference in timing of the entry of the plea. The timing of the plea aside, he submitted, that there was no other basis upon which the court could impose a disparate sentence. He accepted having regard to the offending that a sentence of imprisonment would be imposed. He submitted time served was an appropriate disposition in all the circumstances.
29 Mr Buckland, on behalf of the Crown, accepted your role was limited to that of a crop sitter for one day only. I have already expressed my views about your role as compared to the co-accused and I will sentence you on the basis that your role is equal to your co-accused on the evidence that I have before me.
30 Overall, I accept that you were both equal participants in the role you played on that particular day, and you will be sentenced accordingly.
31 I accept that you are genuinely remorseful and your plea of guilty reflects that. This has been a difficult experience for you in terms of managing prison without having the linguistic skills and being able to communicate in English.
32 Overall, I accept that you do have good prospects of rehabilitation and I have had regard to your conduct whilst on remand.
33 In sentencing you, I must impose just punishment.
34 In all the circumstances, a term of imprisonment is the only appropriate disposition. Could you please stand? I will impose the sentence now.
35 In respect to Charge 1, you will be convicted and sentenced to 340 days' imprisonment. I declare 340 days pre-sentence detention and direct that that be entered into the records of the court.
36 I make the following declaration pursuant to s6AAA declaration. But for your plea of guilty, I would have imposed a sentence of 18 months to serve 12 months, and I make the disposal orders sought, and I have signed that order.
37 COUNSEL: As Your Honour pleases.
38 HER HONOUR: Thank you. The clear intention is that Mr Luu is released today.
39 MR VALOS: Yes.
40 HER HONOUR: Yes, thank you. All right, thank you. We can adjourn now. Thank you, Ms Interpreter.
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