Director of Public Prosecutions v Luu

[2014] VCC 1323

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01017

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRINH LUU

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2014
DATE OF SENTENCE:	19 August 2014
CASE MAY BE CITED AS:	DPP v Luu
MEDIUM NEUTRAL CITATION:	[2014] VCC 1323

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Trafficking drug of dependence – Cultivation commercial quantity cannabis – Theft – No criminal record – Aged 55 years

Sentence:Total Effective Sentence 22 months’ imprisonment – Non-parole period 12 months’ imprisonment – Sentencing Act 1991 s.6AAA declaration – Ancillary orders

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai  (Plea) Ms C Teague (Sentence)	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Ms T Hartnett	Balmer & Associates

HER HONOUR:

1Trinh Luu, you have pleaded guilty to one charge each of trafficking in a drug of dependence, cultivation of a commercial quantity of cannabis and theft.

2The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment, for cultivation of a commercial quantity of cannabis, 25 years' imprisonment and theft, 10 years' imprisonment. The maximum penalties reflect the seriousness with which such offences are regarded by Parliament. 

3You were born on 17 August 1959 and at the time of the offending you were 55 years old. 

Offending:

4On Monday 6 March 2014, police executed a search warrant at a house in Albanvale.  You were present. 

5During the search they found 72 cannabis plants weighing a total of 57.42 kilograms.  This gives rise to Charge 2.

6The plants were growing in two rooms in the house and in a room in the garage which had been constructed with false walls.  They were growing in pots under high powered lighting suspended from the ceiling.  A reticulated watering system had been set up. 

7An electric bypass had been installed in the wall cavity of a bedroom of the house.  It diverted electricity around the meter box.  As a result, power used in the cultivation process was not recorded by the electricity retailer, Powercor.  It is estimated that you were undercharged to the extent of $9,137.54.  This forms the basis for Charge 3.

8Items seized from the property included electrical transformers, water pumps and pipes, high powered light globes and light shades, electrical timers, power boards, fans, plant incubators and other building and garden products.

9You were taken to the Sunshine Police Station where you were interviewed.  You admitted cultivating the cannabis seized by police and the theft of electricity.  You also admitted to trafficking an earlier cannabis crop, which gives rise to Charge 1.

10Through an interpreter, you told police:

11"This time is the second time I planted and the first time is about two months ago".[1] 

[1] ROI Q&A 36

12"Two months ago I planted 20 plants.[2]  I sold them for $20,000.[3]  I received cash.[4]  I go to the person who sold the equipment and that person introduced someone to buy it".[5]

[2] ROI Q&A 38

[3] ROI Q&A 39

[4] ROI Q&A 42

[5] ROI Q&A 141

13"I bought the equipment for $7000 or $8000.[6]  Before I bought just one equipment for the two months ago and this time I buy another one.[7]  I buy it from someone without any tax receipt."[8]

[6] ROI Q&A 45 ff

[7] ROI Q&A 47

[8] ROI Q&A 101

14"I did the bypass electricity; I hired someone to do it for me.  I don’t know who he is.  It cost $1000"

15You also told police.[9]

[9] ROI Q&A 55

16"It was to gain financial benefit.[10]  I get that by myself.[11]  I didn’t receive any money from Centrelink; I rely on the cannabis.[12]  I have no income at all and I’m addicted to gambling".[13]

[10] ROI Q&A 76

[11] ROI Q&A 90

[12] ROI Q&A 92

[13] ROI Q&A 160

17Mr Luu, as the learned prosecutor said at the plea hearing, your offending was beyond that of a crop sitter, which is often the situation when offences of this kind are committed.  You invested time and money in this cannabis cultivation venture for your own personal gain.  In sentencing you, I have factored in the periods over which you trafficked and cultivated cannabis, being one month and three months respectively.  You sold 20 plants for the significant sum of $20,000, which indicates that your trafficking was far greater than the street dealing kind, although there was one sale only.  I also factor in the significant weight of cannabis which was found in your possession which is more than twice the threshold for commercial quantity, albeit that this was probably the wet weight of the plants.  I have taken into account that the saleable weight would be somewhat less than this.

18On any view of things, your offending is serious and deserving of a punishment which is just in all of the circumstances.  Your conduct must be denounced.  Strong weight must be given to general deterrence in a bid to deter others from offending as you have.

19You had reached the age of 55 without any prior convictions which is a matter in your favour and bodes well for your prosects of rehabilitation as does the fact that you were most co-operative with the police.

20     You were committed to this court at a committal mention on 10 June 2014 and pleaded guilty, with the matter proceeding by way of straight hand-up brief.  I take into account your early plea of guilty which has saved the witnesses the time and trouble of giving evidence, and you have also saved the community the time and expense of contested proceedings.  You are therefore entitled to a significant discount in the sentence you would otherwise receive.  Added to this, you revealed to the police that you had trafficked cannabis, which gave rise to an additional charge which the Crown would not have otherwise known about.  I accept that you are remorseful and ashamed of your actions insofar as they reflect on you and affect your family.

21     Ms Hartnett, in an excellent and realistic plea on your behalf, told me that you had not expressed regret as to how your offending had the capacity to affect others.  I do hope that you come to appreciate this sooner rather than later.  I would have thought that you would not want your own children to be consuming cannabis, so you might think about how you were not too concerned about other people doing so.

22     I take into account your background.  You were born in Vietnam in a coastal town.  You and your family were subjected to the ravages of the war with Cambodia and you then spent several years in a refugee camp in Hong Kong in dire conditions.  It was there that you met your wife who had come from the same village as you.

23     Eventually you travelled to Australia under a humanitarian visa and settled here. You have two children who are now adults and who have done very well.  Your daughter is an accountant and your son is studying at university.

24     Although your education was only to year 7, at which time, you as the oldest child were expected to work to help support the family, you and your ex-wife have worked tirelessly to give your children the education that was denied you.  You have worked in an array of unskilled jobs since you were a teenager.  Since being in Australia you have constantly worked in various industries in order to support your family.  There have been very few periods in the past when you were not gainfully employed, only periods of weeks between different jobs, and it was during those times that you did avail yourself of Centrelink payments.  However, when the sewing business that you had established faltered, rather than turn to unemployment benefits, you chose to engage in the offending for which I now sentence you. 

25     I was told that the premises where the cannabis was grown is a property owned by your former wife to whom you paid rent.  Neither she nor your children were aware of your activities.  Whilst you smoke marijuana yourself, you did not engage in this offending to fund your smoking of the drug, but in order to raise money to support yourself and to enable you to gamble.

26     Therefore, you were motivated to offend for financial gain, but in circumstances where there was no indication of an overly extravagant lifestyle.

27     You have prided yourself on hard work and did not wish to be dependent on the government for financial support.  However, it is a concern that you chose to make money from drug trafficking and cultivation of cannabis, finding this preferable.

28     You have been trying to make the most of your time at MRC and have completed two English speaking programs.  You have not been isolated there as you have had the company of a number of Vietnamese inmates.  Your children have been visiting you regularly and are fully supportive of you.  Their support is another positive factor in terms of your prospects of rehabilitation.  You have applied to do other courses whilst on remand, but these will be more available to you after being sentenced today.  Your attitude in gaol reflects the strong work ethic you have had all your life, and which will stand you in good stead when you are released.

29     I take into account that this is your first time in gaol and that therefore time in custody has been and will be more difficult for you than for others who are more hardened to this experience.

30     I have read the character references tendered in support of you and I accept that you are of otherwise good character.

31     In light of all that I have found in your favour, including the fact that you have reached the age of 55 without offending, that gaol will be a salutary lesson for you, that you have good family support and are of otherwise good character, I find that your prospects of rehabilitation are very good and that I need only place minimal weight on specific deterrence and protection of the community.  

32     It is accepted by you that a term of immediate imprisonment beyond that which you have already served is warranted, which, if I might say so, is a most sensible concession.

Would you please stand up, Mr Luu.

33     In respect of all the charges, you are convicted.

34     I make the following ancillary orders, all of which are not opposed by you:

35     I make an order for forfeiture and disposal in respect of items seized by police which are set out in the draft orders.

36     I make an order for compensation to Powercor in the sum of $9,137.54.

37     I sentence you to the following periods of imprisonment:

38     Charge 1       12 months;

39     Charge 2       18 months which will be the base sentence;

40     Charge 3       3 months' imprisonment

41     I direct that three months of the sentence on Charge 1 and one month of the sentence on Charge 3 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 22 months and I direct that you serve 12 months' imprisonment before becoming eligible for parole.

42     If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of 32 months.

43     I declare that you have already served 166 days by way of presentence detention which will be deducted from this sentence as it has already been served. 

44     Take a seat for a moment, please, Mr Luu.

45     Is there anything arising from those remarks?

46     COUNSEL:  No, Your Honour.

47     HER HONOUR:  Yes, all right.  Thank you.  Yes, if Mr Luu could be removed, thank you. 

48     Yes, thank you, Madam Interpreter.  Thank you, counsel.  We'll now adjourn. 

49     COUNSEL:  Thank you, Your Honour. 

- - -