DDP v Ho
[2022] VCC 211
•25 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00497
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
SHARON HO
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 22 February 2022 | |
DATE OF SENTENCE: | 25 February 2022 | |
CASE MAY BE CITED AS: | DDP v Ho | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 211 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Trafficking in a drug of dependence (methylamphetamine) – guilty plea entered after sentence indication hearing – commercial quantity threshold reached – no evidence of intention to traffick in a commercial quantity – trafficking for profit to support lifestyle – traumatic and disrupted childhood – Commitment to reengage with education and family – Added weight given to guilty plea in the COVID environment
Sentence: Combined sentence of 49 days’ imprisonment (time-served) and release on community correction order for 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Fisher | Office of Public Prosecutions |
| For the Accused | Mr B Farrington | White & Associates |
HER HONOUR:
1Sharon Ho, you have pleaded guilty to one charge in trafficking in a drug of dependence, namely methamphetamine.
2On 1 July 2020 police executed a search warrant at the house where you were living with your co accused, Sinisa Gavric, in Point Cook. Amongst other things, they found in the bedroom, in 3 separate Ziploc bags, a total of 74.5 grams of mixed methylamphetamine. It had a purity of between 78 and 88 per cent, making the quantity of pure methylamphetamine found 64 grams.
3A traffickable quantity of methylamphetamine is 3 grams; a commercial quantity is 50 grams pure or 250 grams mixed. Thus the quantity itself was over the threshold for a commercial quantity.
4In addition to the quantity of methylamphetamine found in your joint possession, a significant amount of cash, $2,500, was also found. Just as significantly, on your telephone, Sharon Ho, were text messages indicative of trafficking; that is, of fielding requests for and responding to requests for the supply of methylamphetamine to what would appear to be end users.
5You were originally charged with trafficking in a commercial quantity of methylamphetamine based on the quantity of the methylamphetamine found in the house, and other offences relating to other things found in the search. The charge of trafficking in a commercial quantity of methylamphetamine requires not only possession for the purposes of trafficking an amount over a commercial quantity, or actual evidence of trafficking an amount over a commercial quantity, but also an intention to traffic in a commercial quantity.
6Whilst it would appear that you ultimately acknowledged that you were engaged in the business of trafficking, you contested your intention to traffick in a commercial quantity, and it is on that basis that the prosecution has accepted the offer that you made to plead guilty to a charge of trafficking in a non-commercial quantity.
7The plea is put on the basis that you were in possession of that quantity of methylamphetamine, jointly with your co-accused Mr Gavric, for the purpose of sale and, as evidenced by the text messages on your phone, a sample of which were set out in paragraph 17 of the prosecution opening, that you were engaged in trafficking for profit. Therefore, although the quantity is relevant to the assessment of the seriousness of the offending, it is only relevant to the seriousness of the offending in respect of a charge of trafficking in a non-commercial quantity, and that is how I approach it.
8The offence of trafficking in a non-commercial quantity is still serious. It carries a maximum term of imprisonment of 15 years.
9Following the execution of the warrant you were charged and initially remanded in custody. You spent 49 days on remand before you were released on bail, and you have remained on bail and been compliant with its conditions for the past 18 months.
10Ordinarily, for a person found in possession of this quantity of methylamphetamine, with telephone messages indicating that they are engaged in the business of trafficking for profit, a term of imprisonment would be the most likely outcome, even where there is an absence of evidence of an intent to traffick in a commercial quantity. Indeed the Sentencing Advisory Council SACStat database reveals that between 2015 and 2020, 84 per cent of the 826 people who were sentenced for trafficking in a non-commercial quantity in the higher courts received a term of imprisonment.
11It is clear that trafficking in prohibited substances, drugs, is a serious offence and denunciation, deterrence both general and specific, and just punishment are significant factors in sentencing.
12Trafficking is a terrible thing. Assisting people to use illicit drugs causes untold misery, and profiting out of it is absolutely amoral. It is no mitigator if people sold only to those they knew or friends, or even if they thought or deluded themselves into thinking all they were doing was covering the costs of their own use. Here you actually acknowledge more than that, that you were trafficking to make a profit. That is, to support your lifestyle. All that does is to exploit the misery of other people, users and the victims of their use, their long suffering families, the victims of the crimes they commit, and the overall community costs of the squandered lives of people whose lives are given over to substance abuse.
13If people in your position did not sell, did not normalise its use or its trafficking, maybe, just maybe, some people would be deterred from using or would be able to lead better, more lawful and more meaningful lives, and people like you would not be tempted to think it is an easy way to make money and think more about living a more meaningful and offence free life yourself.
14Any sentence to be imposed must serve as a reminder and a warning to other people that selling amphetamines is a crime, and selling for profit is a cruel, exploitative way to make money. To live a comfortable life at the expense of the misery of others is not something that we, as a community, condone.
15Having said that, as I have already indicated by the sentence indication hearing and upon the plea, I am satisfied that in your circumstances and in the really difficult pandemic circumstances we are facing in this state at the moment, a sentence that does not involve returning you to custody is appropriate, provided that you were assessed as suitable for being released on a community correction order. Although being assessed as at high risk of reoffending you have, nonetheless, been assessed as suitable for a community correction order and have indicated a preparedness to properly engage with it.
16I will follow through on what I said I would do, and you will not be required to serve any further term of imprisonment. You are going to be released on a community correction order, with conditions that you submit to supervision, engage in drug rehabilitation, and perform unpaid community work, provided you consent to that. What then are your personal circumstances and the reasons why, in your case for such offending, a further term of imprisonment is not required?
17You are 28. You are no longer even at the outer edge of being a youthful offender, which is how you were properly classified at the time of the offending, because you were then 26. Despite those maturing years, you faced significant disadvantage in your childhood, which has clearly carried on into your early adult years.
18Your childhood was disrupted by the separation of your parents at the age of six and the consequent loss of any meaningful contact with your father after that. You described your relationship with your mother during your childhood and youth as strange.
19There were frequent moves with your mother, from Perth where you were born and lived till you were six; to Melbourne, to Queensland, back to Melbourne, to Adelaide, back to Perth, and then back to Melbourne between the ages of 11 and 17. Those moves, and changes of school and neighbourhood that accompanied them, meant that you did not form stable or enduring childhood friendships or, it would appear, connections with any family apart from your mother with whom your relationship was fractious, and your younger brother.
20At 17, your mother and your brother went back to Perth. You decided to stay on in Melbourne. You had formed a relationship with a man who was considerably older than you and who, in hindsight, you concede was controlling. You left school at his urging after your mother returned to Perth, which means you did not complete Year 11. You were living a life unsuitable for a child still young enough to be at school and in Year 11.
21One night whilst you were still 17 – that is, under the age to enter licensed premises – you accompanied him to a nightclub. There was an altercation, he was stabbed, and died of his injuries. He was stabbed and died in your presence. That would be a searing experience for anyone, but for a young woman, or girl, you were still under age, without the presence of, or any positive relationship with your mother, lacking any meaningful relationship with your father, and lacking the social and support networks that usually exist for teenagers with their school and neighbourhood peers, it must have been considerably worse.
22You were already clearly a young woman, or girl, pushing boundaries, trying desperately to lead an adult life although you did not have the maturity to do so, and not surprisingly after that experience and in the circumstances you were in with your peer group, you became increasingly associated with other troubled, rootless young, and maybe not so young, people. Drugs, a gambling addiction, a lack of meaningful education or employment, and a couple of short lived, abusive relationships marked your following years.
23At the age of 21 you became pregnant and gave birth to a son. The father of the child disappeared in any effective sense from a shared life with you even before your child was born. That has meant that your son, has lacked the presence of a father from the time he was born.
24Although you reported remaining substance free after discovering that you were pregnant and for the first few months after his birth, by the time he was about five months old you had returned to drug use. However, by that time, you had begun to recognise that you were suffering symptoms of anxiety, depression, and a general inability to cope or feel that you had any meaningful or worthwhile attributes yourself.
25You eventually reached out to your mother, and that began an improvement in the relationship between you. She began to travel regularly to Melbourne, helping to support you and your child. The relationship has improved and you now describe it to the psychologist, who assessed you for the purposes of this plea, as having been stable and indeed good for some years, so much so that before this offending you had been planning to move to Perth to be closer to your mother, and to take advantage of the support that she was willing to offer you and your son, living closer to and connected with extended family, and giving him the benefit of a relationship and association with his maternal grandmother and uncle.
26The onset of lockdown and then being charged and remanded in custody resulted in your mother ultimately becoming the guardian of your son. He has been living in Perth with her, and because of the impact of lockdown and the Western Australia hard border, you have not seen your son since you were charged until some easing of restrictions, which meant he was able to come and visit you at Christmas time last year.
27I am told, however, that you speak to him daily on Facetime so you have done what you can in these very difficult circumstances to maintain your connection with him and, more importantly, to show your love for him and your sense of real responsibility for him, and I consider that to be significant. I do not underestimate the distress that must be caused by being physically separated from your son and the impact of COVID, meaning that you have been unable to be with him and to share in all those milestones that a child has at that age and stage of life.
28It is your intention, when border restrictions permit and when these court proceedings enable you to do so, to relocate to Perth to resume day to day care of your son, and to remain close to your mother and continue to get support from her for the two of you.
29I am satisfied on the material I have heard about, the circumstances in which you ended up not being able to care for your son, and the fact that he then went to Perth and was with your mother and has been there for quite some time in her guardianship, that this is not a case where you have relinquished care or responsibility, but where your mother is truly the custodian until your return, and you are suffering the anguish of separation from him.
30In considering how this affects the potential of a community correction order being imposed upon you, Mr Farrington told me that the effect of being charged with such serious offending and having spent 49 days in custody, having been required by your bail conditions to remain in Victoria and being restricted because of COVID from crossing the border into Western Australia in any event, you have already had brought home to you a sense of the consequences of your actions, and that you are, consistent with that, prepared and committed to remain in Melbourne for so long as it takes to complete the community correction order or to obtain the permission of Corrections to travel to Perth, or to then transfer your order to supervision there.
31That, in the circumstances, is another illustration of accepting responsibility for the consequences of the choices that you have made, although it has already, and may for some time into the future, keep you separated from the son you clearly are devoted to. We are often told in court that being charged is a wakeup call. Here, I think, there is real truth to that often overworked phrase.
32Mr Farrington told me that you ended up living with Mr Gavric, after lockdown was first called, was because you had no work and nowhere to go. You could not get to Perth as you had hoped, and with him you became immersed in, or continued to live a lifestyle of substance abuse and trafficking.
33Having been charged and remanded, you had to consider how and where you would live were you to be released on bail. Mr Gavric was in custody, and it may be a recognition by you that it may not have been in your interest were you at liberty for the two of you to continue to cohabit. As it turned out, the only place that you could find to stay if you were to be released on bail was with the paternal grandparents of your child.
34I have already mentioned that the father of your child had effectively disappeared from your life before the child was born. He, despite DNA tests proving his paternity, continued to deny not only paternity but any sense of paternal responsibility. However, his parents and extended family had tried to keep in contact with you and the child and to maintain a relationship with him, and ultimately it was they who offered you a place to live. Despite the very difficult circumstances, you accepted that. You had nowhere else.
35Mr Farrington told me that their son, the father of your child, then tried to reinsert himself into your life and to exert what you could see was likely to be a bad influence on you. To your credit, and showing that there is some force to this sense of being charged and being remanded can be a turning point, you resisted the attempts to go back into the life that you had led with him, and with considerable difficulty found alternative stable accommodation, navigated the relationship with his parents, and managed to move out and support yourself independently.
36You found employment in a nail salon. You are paying rent, and I am told you are disassociating yourself from your past friends and drug milieu, and have worked hard to maintain your goal of remaining substance free and away from the lifestyle of an aimless drug milieu. Consistently with that, you have not been charged with any offences since you were released on bail and you have been compliant with your bail conditions.
37In a sense, simply putting your head down and keeping yourself out of trouble may not sound much, but I take it in your circumstances as significant evidence of maturing, of taking responsibility, and taking active steps to stay out of trouble, which seems to be a change from your somewhat passive approach to your life that you have lived in the past.
38I consider it is significant that in the difficult circumstances in which you found yourself after being charged and being remanded in custody and thereafter being released on bail, that you have made such efforts to distance yourself from your past and to take active responsibility for your present and your future.
39I have noted already that since you have been released on bail you have found yourself employment as a nail technician. I am told that you are now articulating clearly, and with a sense of having thought it through, a desire to continue your education to make up for the fact that you left school before completing Year 11, and that you want to embark upon serious vocational study in interior design.
40These are promising signs of maybe delayed maturing, but it is certainly maturing because it means that you are looking at setting yourself up to lead a responsible, independent, self-supporting adult life, and not one where you are going to be dependent, as it appears you have been since the birth of your child, on welfare and desultory bits of untrained work.
41Hence these factors make your prospects for rehabilitation better than might otherwise be thought from looking simply at your history, the circumstances of the offending, and the bald assertion that you have been dealing with your substance abuse and not having been charged with anything else since you were released on bail.
42You have a very limited criminal history containing relatively minor charges; one of possessing amphetamine consistent with the history of substance abuse; a careless driving charge; one weapons offence and proceeds of crime offence, all consistent with that drifting and substance abusing life that you have led.
43The main matter that was relied upon, apart from those personal circumstances and the clear evidence of development and the assumption of responsibility for yourself, was the effect of COVID. That is, in a time of unprecedented strain on the criminal justice system, there is added weight to be given to the utilitarian benefits of your guilty plea, having saved the time and cost of a trial.
44So too is the added burden of imprisonment in this time of pandemic: the restrictions on visits, the restrictions on access to programs, the restrictions upon movement and availability to even be outside a cell, let alone engage in meaningful activity as a result of the pandemic, have made imprisonment significantly more burdensome for people than it previously was.
45In addition to all of those matters, the other matter that was pressed and supported fairly and appropriately by Mr Fisher was the hardship of returning a person, who had already had experience of remand during COVID conditions, to imprisonment in continued COVID conditions. The COVID impact on the justice system cannot be underestimated. The manner in which COVID custody needs to be served has changed this case, in my view, from one in which imprisonment with more time to serve would have been the appropriate or likely sentence, were COVID not still in existence, to one in which the balance has tipped firmly in favour of imposing a sentence upon you that does not involve serving any further term of imprisonment.
46Because of what I have said about the seriousness of trafficking and because of the amount of methamphetamine you had for the purposes of trafficking, albeit absent evidence of an intention to traffic in a commercial quantity, I still consider that for the purposes of general deterrence, denunciation and maybe even specific deterrence, a term of imprisonment accompanied by a community correction order is warranted.
47However, I do not consider in those circumstances that the term of imprisonment need be any longer than the time that you have already served and I am not going to direct any additional term of imprisonment that you must serve before being required to commence your community correction order. I want you to understand that when I pronounce the order, Ms Ho.
48It is going to be an order for a term of imprisonment of 49 days with a declaration that you have served all of that time, therefore you are still at liberty, followed by a community correction order which will commence today. Can I just ask you to let me know if you understand what I have said?
49OFFENDER: Yes, Your Honour.
50HER HONOUR: Excellent, thank you. In that case, the order of the court is this. On the one charge of trafficking in methamphetamine you are convicted and sentenced to be imprisoned for a period of 49 days, followed by release upon a community correction order for a period of two years and three months. Before I deal with conditions of that community correction order, I declare that you have already spent 49 days in pre-sentence detention, and direct that that be counted and therefore the sentence of imprisonment be reckoned as already served.
51So far as the community correction order is concerned, the order is for a period of two years and three months. It commences today, 25 February 2022, and it ends on 24 May 2024.
52There are mandatory terms that apply to all community correction orders, and they are these. You must not commit another offence for which you could be imprisoned during the time the order is in force. That is just about anything apart from a minor speeding offence. Even more serious driving offences carry terms of imprisonment, so in effect you must remain offence free for the next two years and three months.
53You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means that you must not be impaired by substances, prescription drugs, illicit drugs, or alcohol when attending on Corrections for anything connected with this community correction order, and you must submit to drug or alcohol testing if required to do so by Corrections.
54You must report to, and receive visits from the Secretary or delegate. You must report to the Melbourne Justice Service Centre at 60 Franklin Street, Melbourne, within two clear working days after the commencement of this order. Today is Friday; that means you must do so by Tuesday of next week.
55You must let a community corrections officer know within two clear working days if you change your address or your job. I understand from the CCO suitability assessment report that the lease on the apartment where you are living is coming up, and that you will have to move. You must let Corrections know within two days of moving out of that address and you must let them know where you are going. Indeed, every time you change address you must let them know within two days.
56You must not leave Victoria without first getting permission to do so from the Secretary or their delegate, and you must obey all lawful instructions from, and directions of the Secretary or delegate. They are what we call the core conditions. All community correction orders have those conditions attached to them.
57In addition there are three special conditions relevant to you and your circumstances. You must perform 200 hours of unpaid community work over the 27 months of this order as directed by the regional manager. I am also ordering that you undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.
58Coming back to the unpaid community work, all hours of treatment and rehabilitation successfully undertaken under this order are to be counted as part of your unpaid community work commitment and deducted from it. So, if you do 100 hours of rehab, that is counted as 100 hours of unpaid community work and you only have to do another 100 of unpaid community work.
59So far as the unpaid community work condition is concerned, if you fail to comply with that condition the Secretary of the Department of Justice or the delegate can give you a direction to perform additional hours of unpaid community work and that is in accordance with s83AU of the Sentencing Act, so if you are directed to attend for work and you do not turn up, not only will you still have to do those hours you did not do, but the Secretary can direct you to do some additional hours as well. You must be under the supervision of a community correction officer for the full period of the order, that is 27 months.
60Ms Ho, do you understand all those conditions?
61OFFENDER: Yes, Your Honour.
62HER HONOUR: Are you sure? Do you want to ask me any questions about any of them?
63OFFENDER: I understand.
64HER HONOUR: Thank you. Do you consent to being released upon the order on those conditions?
65OFFENDER: Yes, I do, Your Honour.
66HER HONOUR: All right. I take your verbal consent just given to me now as evidence that you have understood and that you do consent. A copy of the order will be provided to Corrections, and when you have a face to face meeting with them they may ask you to sign that. That's just to formalise the consent that you have given today. I'm not sure whether your attendance - your first reporting that is to take place within two days is to be an in person attendance or telephone attendance. Did Corrections discuss that with you, Ms Ho?
67OFFENDER: I think they were waiting for Friday to confirm.
68HER HONOUR: All right. If they have given you a telephone number what I recommend you do is that you ring them once we formalise the court proceedings here and make an appointment, and they will let you know whether it's to be a face to face or a telephone appointment, but do remember the obligation is upon you to contact Corrections to make that first appointment. You shouldn't sit back and wait for them to contact you. Do you understand that?
69OFFENDER: Yes, I understand.
70HER HONOUR: Thank you. In addition to the orders that I have already pronounced I declare, pursuant to 6AAA of the Sentencing Act, that if you had not pleaded guilty I would have sentenced you to a term of imprisonment of two years and I would have fixed a period of nine months as the time that you had to serve before being released on parole. I have also been asked to make forfeiture orders in relation to the money, the phones, and the black lockbox that were found in your possession, and disposal orders too in relation to the drugs, and I make those orders.
71Are there any further orders that are required to be made, and are the orders that I pronounced, Mr Fisher, correct?
72MR FISHER: No further orders are required and yes, they're correct, Your Honour, thank you.
73HER HONOUR: Thank you. Do you agree with that, Mr Farrington?
74MR FARRINGTON: I do, yes, Your Honour.
75HER HONOUR: Thank you. Can I thank both you, Mr Farrington, and you, Mr Fisher, for first of all working to such a sensible resolution of this and to a sensible position in relation to an agreed range of outcomes, and for the manner in which you have presented this before the court. It made it much easier for me because of the assistance you gave me.
76MR FARRINGTON: I'm grateful for that, Your Honour.
77HER HONOUR: Ms Ho, the last few years haven't been easy for your young adulthood that I suspect that you're not too happy about that. I hope that this really is the opportunity for you to be able to put this behind you, to be able to see the value of the work that you have, and to look forward to a really happy time from now on with your son, with your mother, reintegrating with your family and becoming a different, mature adult from the obviously unhappy child and the troubled young woman you were.
78You've got a lot going for you and this order, I hope, will put the supports around you that will help you when you're feeling low or troubled or tempted to return to use, to see that you've got more to yourself and more to your life than that, so I hope it's the last time before me and I hope it's the last time you're before a court, but if you want to send Mr Farrington a letter telling him you're doing well and he can send it onto the court, that will be lovely. I really like to hear good progress reports about people.
79If you're struggling with the order and you'd like perhaps to bring it back before the court so that we can talk about whether conditions need to be varied, tell Corrections about that and ask them to assist to bring you back to court so we can talk about where to go from here, rather than just running away and thinking it's all too hard. As I hope the experience leading up to today since you were charged has shown, with people around to help you can get through problems, but running away from them only makes it worse. Although it may be hard to say 'I'm struggling', it's ultimately going to be a much better thing to do that, and to get everyone to help sort through so that you can make better choices.
80I understand that it won't always be easy, but I do want you to keep today in mind and think you've got yourself to this stage, you've got a really promising future ahead of you, you're showing how you can take responsibility and you shouldn't be afraid to put your hand up and say 'I'm struggling, I need help', because you know now that help is available and that it's not always going to be all bad, so look after yourself, send that letter. Maybe on the first anniversary send a letter to Mr Farrington and tell him how you're going and ask him to send it onto me. Thank you, we will now adjourn.
81MR FARRINGTON: As Your Honour pleases.
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