Director of Public Prosecutions v Quoc Luu
[2020] VCC 1672
•29 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC LUU |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October 2020 | |
DATE OF SENTENCE: | 29 October 2020 | |
CASE MAY BE CITED AS: | DPP v Quoc Luu | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1672 | |
REASONS FOR SENTENCE
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Subject: Cultivation of commercial quantity of cannabis L
Cases Cited: Tuan Doan v The Queen [2010] VSCA 250; McLelland v The Queen [2017] VSCA 124.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Ms A Liang | Giorgianni & Liang Lawyers |
HER HONOUR:
1 Quoc Luu, you have pleaded guilty before me to one charge of cultivation of a commercial quantity of a narcotic plant, namely cannabis L, for which the maximum penalty is 25 years' imprisonment.
2 On 5 August 2019 a search warrant was executed at 29 Reserve Road, Ringwood (the property). Police conducted surveillance of the property prior to the warrant being executed. The house located at the property is a 3-bedroom residential property owned by Lin Guang. The property had been rented to Thi Mai Nguyen (Nguyen) and a tenancy agreement was entered into on 1 April 2019. Police have been unable to locate Nguyen and it is alleged that the person who rented the property used a fake name and driver’s license.
3 Police observed you arrive at the address in a silver Nissan Maxima registration 10H4XF (the Nissan). You were observed entering the property and taking a bin outside.
4 On arrival, police approached you and yelled, “Stop, police”. You ran and jumped the rear fence of the property. You then ran through the neighbouring yard, across a road and onto the Mullum Mullum Creek Trail. You were pursued by police for approximately 300 metres before you were arrested.
5 You were cautioned and searched. During the search, your wallet with your identification was seized as well as a set of keys. The keys unlocked the front door of the house at the property.
6 No one else was present at the property at the time of the search warrant. On entry to the property, police observed multiple rooms being used to cultivate cannabis plants. Some of the rooms were fitted with artificial lights, charcoal filters and watering systems. Police located fertilizer, growth enhancer, gardening gloves and a face mask as well as an electronic bypass. DNA located on the face mask was matched to you.
7 Police processed the house on 6 August 2019. 117 cannabis plants were located in the following rooms weighing a total of 48.29 kg.
. Room 1 – 12 cannabis plants – weighing 18.12 kg
. Room 2 - 15 cannabis plants – weighing 21.44 kg
. Room 3 – 90 cannabis plants – weighing 8.73kg
8 You were interviewed by the police on 5 August 2019 with the assistance of a Vietnamese interpreter. You told the police that you did not know what cannabis is, that you ran from the police because you did not have a visa and were scared. You gave 'no comment' answers to questions about why you were at the address and the existence of cannabis located at the address.
9
The facts in this case are very serious. As stated by Forrest AJA in
Tuan Doan v R[1]:
[1] [2010] VSCA 250, [11].
'The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong[2]). Recently in this Court, emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v R [3], DPP v CPD[4]). This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (R v Mason[5] ) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.[6]
[2] [2006] VSCA 78.
[3] [2010] VSCA 127.
[4] [2009] VSCA 114.
[5] [2006] VSCA 55.
[6]Nguyen v R [2010] VSCA 127, [21].
10 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. The prosecution accepted that the utilitarian value of the plea carries greater weight in light of the COVID-19 pandemic. Further, I take it into account in your favour that you intimated early your intention to plead guilty to this charge. However, aside from your plea of guilty there is no evidence that is indicative of remorse.
11 I have been told something of your personal history and your circumstances. You were born on 10 October 1980 in Quang Binh, Vietnam, and are 40 years old. At the date of the offence you were 38 years old. Your parents were farmers. You were raised by both parents with four siblings. You are the second oldest child.
12 You were educated up to year 7. You then entered the workforce to assist your family financially. You worked in a leather factory and other labouring jobs for a number of years. You worked as a taxi driver for five years before coming to Australia.
13 You are married and have one son. Your wife is 39 years old. She was working in a sewing factory. However due to the COVID-19 pandemic, she has been unemployed for the last six months. Your son is 13 years old. Your family all reside in Vietnam.
14 You are a Vietnamese citizen. You arrived in Australia on 28 March 2017 on a tourist visa. You currently hold a bridging visa. At the time you were arrested you had been in Australia for two years and five months. Prior to your arrest you were working at a fruit and vegetable stall at a market in Epping.
Circumstances of offending
15 Your family in Vietnam were struggling financially. Your wife’s single income was not sufficient to support her and your son. You were sending money home to assist them. However, your income from working at the market was only $200 to $300 per week.
16 You met a male named Phuc through some friends and were told of the opportunity to earn more by tending to cannabis crops. You were promised $100 a day.
17 You have no prior convictions. I sentence you as a person of previous good character.
18 I am, on balance, satisfied that the chances of your rehabilitation are reasonably good. Whilst in custody you have engaged in and completed several courses.[7] You work in the kitchen five days a week. You have the support of your family in Vietnam.
[7] Exhibit 1.
19 The defence submits and the prosecution accepts that your remand in a period of COVID-19 confinement has placed a further burden on you because of the reduction in personal liberty within the confines of the prison and because you have not been able to engage in further rehabilitative programs since March 2020. I take into account in mitigation of sentence the impact of the COVID-19 pandemic, that this is your first time in custody, that you do not speak English well and that you do not have any family or close friends in Australia to support you.
Gravity of offending
20 The quantity of cannabis seized was 1.17 times the commercial quantity by number of plants and 1.93 times the commercial quantity by weight.
21 Your counsel submitted that the gravity of your offending is in the low to mid-range for the following reasons:
(a) There is no evidence that you set up the property or had any close relationship with the principals or leaders of the enterprise.
(b) There is no evidence that you were in a position of trust or responsibility within the drug cultivation hierarchy.
(c) Your offending occurred on a single date.
(d) You did not receive financial profits from the sale of the cannabis.
22 The prosecution accepts that you were a crop sitter and were paid to manage the plants on behalf of higher players. Other people were seen at the property during police surveillance. Whilst the setup was sophisticated, the prosecution does not contend that you set up the property. The prosecutor referred to McLelland v R[8] that :
'In sentencing the applicant, it is important to bear in mind that the maximum prescribed sentence for the offence, for which he was convicted, was 25 years’ imprisonment. The courts have emphasised that general deterrence has an important role to play in cases involving the cultivation or trafficking of drugs in a commercial quantity.'
[8] [2017] VSCA 124, [56].
23 The prosecutor submits that the offending was motivated by profit, although it is accepted that you did not share in the profit of the sale of the plants.
24 In my view your offending comes within the low range of offending for the charge of cultivating a commercial quantity of a narcotic plant.
25 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Mandatory sentencing provisions
26 Pursuant to s3(1) of the Sentencing Act, cultivation of a narcotic plant in a commercial quantity is a Category 2 offence.
27 The court must make a custodial order unless an exception in s5(2H)(a) – (e) of the Sentencing Act applies. The defence concedes that an immediate term of imprisonment is warranted and that the provisions of s5(2H) of the Sentencing Act apply. The defence does not seek to rely on the exceptions contained within s5(2H)(a)-(e) of the Sentencing Act.
28 In all the circumstances, I have no alternative to the imposition of a custodial sentence. I propose to record a conviction and sentence you to be imprisoned for a period of 30 months. I direct that you serve a minimum term of 20 months before becoming eligible for parole.
29 As prescribed by s18(4) of the Sentencing Act, I declare that the period of time that you have already spent in custody is 451 days. I direct that such be noted in the records of the court.
30 I declare pursuant to s6AAA of the Sentencing Act that but for the plea of guilty, you would have been sentenced to a total effective sentence of 45 months with a non-parole period of 30 months.
31 Lastly, I order that the property referred to in the schedule to the disposal orders which I have signed this day be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
32 Thank you. Are there any further matters?
33 COUNSEL: No, Your Honour.
34 HER HONOUR: Thank you. Please adjourn the court.
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