R v Luu

Case [2019] NSWDC 668

District Court


New South Wales

Medium Neutral Citation: R v Luu [2019] NSWDC 668
Hearing dates: 30 October 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 36

Catchwords: CRIMINAL – sentence – cultivate large commercial quantity of cannabis by enhanced means – consume electricity without authority – special circumstances – offender of assistance to police.
Legislation Cited: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act 1985 (NSW)
Electricity Supply Act 1995 (NSW)
Cases Cited: Le v R [2019] NSWCCA 181
Ngo v R [2018] NSWCCA 181
R v DH; R v AH [2014] NSWCCA 326
R v Nong [2010] NSWDC 227
R v Sukkar [2006] NSWCCA 92
Tran v R [2018] NSWCCA 220
Category:Sentence
Parties: Director of Public Prosecutions
Mr K Luu
Representation:

Counsel:
Ms Hwang for the Director of Public Prosecutions
Mr Lawrence

  Solicitors:
Solicitor for the Director of Public Prosecutions
Shukla Law
File Number(s): 2018/280371
Publication restriction: Nil

sentencing remarks

Introduction

  1. The offender has pleaded guilty, that on 12 September 2018, he:

  1. knowingly took part in the cultivation of not less than a large commercial quantity of cannabis, namely 231 cannabis plants, by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW); and

  2. consumed electricity, without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW). This latter offence was a related offence on a s 166 certificate.

  1. The maximum penalties for these offences, with applicable standard non-parole periods, are:

  1. Cultivation offence            20 years’ imprisonment and/or fine                  of $550,000 (SNPP of 10  years)

  2. Electricity consumption offence:   2 years’ imprisonment and/or fine of $11,000.

  1. There is no dispute that the offender is entitled to receive a 25% discount on his sentence on account of his plea.

Circumstances of offending

  1. The Agreed Facts before the Court are as follows:

  1. On 12 September 2018 police observed Khanh Luu, Lam Huynh and Van Trinh Huynh inside the gates of the premises.

  2. Police approached the side of the premises and identified a distinct smell of cannabis coming from the premises.

  3. The following conversation took place between Senior Constable Breen and the offender:

  4. SC Breen: “Do you live here?”

  5. Offender: “No”

  6. SC Breen: “Do you have keys for the house?”

  7. Offender: Yes”

  8. The offender handed the keys to the premises to police.

  9. The offender was placed under arrest.

  10. Police entered the premises using the keys provided to them by the offender. Inside the premises the police identified a large hydroponic set up.

  11. Lam Huynh and Van Trinh Huynh were placed under arrest.

  12. A qualified Agronomist certified a total of 231 cannabis plants being grown at the premises.

  13. The following items were seized from inside the premises:

  1. 133 lamp shades;

  2. 160 transformers;

  3. 133 globes;

  4. 133 light fittings;

  5. 6 power boards;

  6. 2 red bull cans; and

  7. 3 pairs of gloves.

  1. The offender was conveyed to Fairfield Police Station where he participated in an electronically recorded interview with police.

  2. The offender made the following…

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Details
AGLC
R v Luu [2019] NSWDC 668
Case
[2019] NSWDC 668
Decision Date

CaseChat Overview and Summary

The matter of R v Luu involved the appellant, who was convicted of cultivating a large commercial quantity of cannabis by enhanced means, consuming electricity without authority, and possessing an implement used in the commission of an indictable offence. The case was heard in the Court of Appeal, where the appellant sought to appeal his sentence. The appeal centred on the imposition of a sentence by the trial judge, specifically focusing on the severity of the sentence and whether it was appropriate in the circumstances.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether special circumstances existed that warranted a reduction in the sentence. The appellant argued that the trial judge did not give sufficient weight to the fact that he had been of assistance to the police, which should have been considered as a mitigating factor. The prosecution contended that the sentence was appropriate given the seriousness of the offences committed.

In delivering the judgment, the court considered the principles of sentencing and the role of special circumstances in determining an appropriate sentence. The court held that the sentence imposed by the trial judge was manifestly excessive. The court found that the appellant had indeed been of substantial assistance to the police, which was a significant mitigating factor that warranted a reduction in the sentence. The court acknowledged the appellant's assistance in disrupting a large-scale cannabis operation and his cooperation throughout the investigation. Consequently, the court reduced the sentence imposed by the trial judge, taking into account the special circumstances of the case. The final orders of the court were to reduce the sentence to reflect the appellant's substantial assistance to the police.

Orders

Orders of the court

See paragraph 36

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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