Director of Public Prosecutions v Cui

[2019] VCC 1083

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00587

DIRECTOR OF PUBLIC PROSECUTIONS

v

NISA CUI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 July 2019
CASE MAY BE CITED AS:	DPP v Cui
MEDIUM NEUTRAL CITATION:	[2019] VCC 1083

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. C. Pezzimenti	Office of Public Prosecutions
For the Accused	Mr. J. Saunders

HIS HONOUR:

1Nisa Cui, on 15 October 2018, you and your co-accused, Frankie Zhang, appeared before this court for trial.  On that day, Zhang pleaded guilty to a charge of trafficking in a drug of dependence.  I sentenced him thereafter.

2At that time, you did not plead, but after some further discussion you entered a plea of guilty the following day, for charges of trafficking a drug of dependence in a commercial quantity, trafficking in a drug of dependence, possession of a drug of dependence and negligently deal with the proceeds of crime.

3The first charge related to a period between 11 April 2017 and 30 May 2017 and concerned trafficking in not less than a commercial quantity of methyl amphetamine.  The trafficking simpliciter related to the same period and the substance 1,4-Butanediol. 

4The possession charges related to 30 May 2017 of the cannabis L, diazepam, alprazolam possession, while the fourth also relates to the same day.  You were 24 at the time of your offending. 

5On 29 May 2017, Zhang was arrested and charged with a number of offences, mainly related to drugs.  The investigation revealed you had been his girlfriend and been living at your Doncaster address. 

6Police searched these premises on 30 May.  The items located were numerous and mainly related to the drug trafficking.  The schedule of items found is at pp.4 and 5 of the Crown opening.  Many items indicative of trafficking were found, including notes and transaction records, deal bags, scales, cash and weapons.

7In your possession were 237.2 grams of methyl amphetamine, 428.5 grams of butanediol, 40.9 grams of heroin and 25.8 grams of cannabis.  Also found was an amount less than two grams of diazepam and .5 grams of alprazolam.  Your DNA was located on a number of items as well as your fingerprints.

8On June 1, you were bailed, two days in custody referrable to this matter. I should note that Charge 1 is a category 2 offence for the purposes of sentencing and accordingly, regard must be had to s.5(2H) of the Sentencing Act. 

9Section 5 of the Act sets out sentencing guidelines. Section 5(2H) provide that in sentencing an offender for a Category 2 offence, the court must make an order under Division 2 of Part 3, other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s.44.

10Unless the offender proves, on the balance of probabilities that: (1) Subject to s.2(HA) which relates to impaired mental functioning caused solely by induced intoxication, at the time of the commission of the offence, he or she had impaired mental functioning which is causally linked to the commission of the offence and substantially reduces the offender's culpability, or (2) The offender has impaired mental functioning that would result in the offender being subject to substantially a materially greater than ordinary burden or risks of imprisonment, or (3) A provision which covers the making of a secure treatment order or residential treatment order, or (4) There are substantially or compelling circumstances that are exceptional and rare, and that justify not making an order under Division 2 of Part 3. 

11It is notable that s.2(HB) defines impaired mental functioning as having the same meaning as in s.10A of the Act.  In the subsequent sub-sections, the Act then deals with the determination as to whether there are substantial and compelling circumstances and what the court must have regard to. 

12Section 10A(1) defines impaired mental functioning inter alia as mental illness within the definition of the Mental Health Act 2014. This definition is contained in the section dealing with special reasons relevant to imposing minimum non-parole periods and to a large extent, repeats the provisions of s.5 and sub-s.(2) of that section in relation to substantial and compelling circumstances.

13This of course then raises the question as of the definition of a mental illness within the meaning of the Mental Health Act 2014. That section defines mental illness with a number of exceptions outlined in sub-s.(2) as a;

'Medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.' 

14It is noteworthy that sub-s.(2) says that a person is not to be considered to have mental illness by reason only of inter alia sub-s.(L) that the person uses drugs of consumes alcohol but s.3 then goes on to say, that (2L) does not prevent the serious, temporary or permanent psychological biochemical or psychological effects of using drugs or causing alcohol from being regarded as an indication that a person has a mental illness.

15It was noted further that mental illness is defined in Section 3 of the Sentencing Act (1991) as having the same meaning as in the Mental Health Act [2014] to which I have just referred.  The reason for this rather involved preamble will appear further in this sentence.

16You are now 26 years of age.  I take your plea into account.  It was accepted after protracted negotiations.  I accept that it has utilitarian benefit in relation to having avoided a criminal trial. 

17The plea facilitates the course of justice, and importantly, is an acceptance of your part and your criminal responsibility in this offending.

18I do not regard that the plea was an early plea.  It followed the day after the set trial date when Zhang pleaded guilty, although I accept the resolution had been discussed, the plea was actually finalised only that day.  However, the plea will nevertheless reduce your sentence significantly. 

19The matter of remorse is more complex, in that often it is a feeling that does not materialise, or is adequately neither felt nor expressed at one point of time, but rather, develops over a relevant period.

20I accept that the plea made in October 2018 is evidence in itself of some remorse, however I was then properly informed that in January of 2019, you were again arrested while on bail for some matters in circumstances involving the trafficking of ice and possession of other drugs of dependence as well as proceeds of crime offences and possession of a firearm. 

21Although clearly those matters have not been resolved, they are of concern.  I make no assumption as to guilt or to outcome and I shall refer to a report completed whilst at Dame Phyllis Frost in March of 2019.

22But given your history and circumstances, it is not surprising that you may have been further involved in drugs in early 2019. 

23However, while this indicates that remorse is difficult to accept, two factors strengthen my early comment about it being a developing realisation; (1) Your mental health and (2) What you indicated more recently to the assessing officer who assessed you on behalf of the Department of Justice in June of this year in which you expressed some insight and some remorse.  I shall return to these matters in a moment.

24An initial plea was conducted in April of 2019.  The plea began by the concession that the mandatory provisions apply to your case, making a sentence mandatory subject to certain considerations being satisfied as outlined above.

25You have no prior convictions, no history of offending at all.  Reports by Dr Duncan and Mr Ian McKinnon were received, but it was submitted that your poor psychological health did not enliven Verdins considerations, except principles 5 and 6 to which I should have regard.

26In the context of the substantial and compelling reasons, some portion of Mr McKinnon's report were highlighted.  I will deal firstly with what was put and what I accept is your personal background and circumstances. 

27You were born in Australia to Chinese parents, you have one sister.  Your mother worked at a food store and you were raised primarily by your father until age seven, when you were sent to China to be cared for by a maternal grandmother.

28Upon your return, your parents separated and your mother took up with a new partner, who managed prostitutes and was a drug-user.  You and your mother used drugs together by the age of 13.  This man also gave you ice to use with him.  He was imprisoned a number of times. 

29Your biological father was also a drug-user at the time.  On your 17th birthday, while your mother was overseas, you supplied ice to your father who was involved with dishonesty and deception offences, used heroin, and was in prison. 

30Your step-father attempted to pimp you out to his brothers which you resisted.  Your mother used ecstasy and was involved in heavy gambling.  You continued to reside with her from time to time.  You left school and home, however at 16, you went to live with a partner who was much older than you.  This relationship lasted some five years.  He was abusive and a drug-dealer.  You are currently single. 

31After your time in China, you completed primary school and then you completed some of Year 11.  Your employment since has been sporadic and you have used ice since age 13 and from time to time you have used alcohol, cannabis, ecstasy, cocaine, speed, heroin and GHB.  Over the last two years you have gravitated to users and dealers of ice and GHB and most of your cohort of friends are drug users.

32You have never received treatment for drug abuse.  Since 2015, you attended sporadically with Melissa Duncan, psychologist.  Ms Duncan provided a brief report and addendum, both dated February 2019.

33You initially presented with major depression and drug dependency.  She saw you four times in 2018.  You demonstrated social anxiety and dysphoria for over two years.  You reported anxiety, sleep disturbance and panic attacks. 

34In her judgment, chronic parental neglect and past history of abuse by your step-father, she opined, that you wished to abstain from drug use and had endeavoured to move away from bad influences and were a sincere young woman experiencing high levels of distress and depression, leading to maladaptive conduct. 

35She indicated you lacked the clarity and strength to extricate yourself from these influences and a term of reclusion would have a detrimental impact on your mental health which would exacerbate your anxiety and depression.

36Mr McKinnon, a consultant psychologist, in his report dated December 2018, also diagnosed you with a polysubstance dependence disorder, and mixed anxiety and depression disorder. 

37He noted these were major in character.  He assessed you as highly psychologically distressed.  Although your general cognitive functioning was within normal range, he confirmed that your disorders have their roots in a disturbing childhood and impaired adolescent development periods when you were exposed to anti-social milieu's, family criminality and deviance, substance abuse, instability, separation, abuse and little by way of positive parenting.

38These made you vulnerable to drug use and abusive and manipulative partners.  You have not yet developed a capacity for independent adult living.  You avoid conflict, are compliant and dependent.  You expressed to him some understanding of the impact of drugs on others. 

39The relationship with Zhang, your co-accused, was only one month in duration, and your chronically poor health significantly contributed, according to Mr McKinnon, to degrading your ability to make sound judgments and apply proper reasoning.

40You acted impulsively without consequential reasoning in a self-absorbed attitude.  He opined that incarceration would likely cause considerable distress, anxiety and depression. 

41You remain vulnerable to manipulation and intimidation with the possibility of self-harm.  Mr McKinnon gave evidence on oath before me, in confirmation of his report.  It was argued, that based on this material, I could find substantial and compelling reasons to depart from the mandatory provisions. 

42I decided to have you assessed by a Forensicare psychiatrist.  Before turning to that, I note that a brief report prepared a short time before the plea by the Court Integrated Services Program was read by the court.

43You were assessed for it in late March and in early April, a meeting to address your drug issues and mental health was held with Ms Lynch at CISP, the case manager. You were referred to the Australian Community Support Organisation for assessment and counselling, and you were to attend for a mental health care plan with your GP. 

44You were assessed at the Dame Phyllis Frost Centre.  You discussed harm-minimisation techniques and community support, your desire to engage with drug counselling, attend Narcotics Anonymous, as well as rehabilitative options including residential treatment.

45You reported that you often used Kids Helpline in relation to mental state which you found useful.  Before turning to the psychiatric report provided, I should add that it was conceded on your plea that the offending was serious, that just punishment, general deterrence and denunciation are relevant sentencing principles and that despite Verdins principles not being enlivened, principles 5 and 6 are capable nevertheless, impacting on the determination as to moral culpability for your offending.

46This may, to some extent, be so and could be one of the factors which could be considered on the exercise required to find substantial and compelling circumstances. 

47The psychiatric report was dated 28 May 2019.  The writer is Dr Remy Glowinski, a consultant forensic psychiatrist with the Victorian Institute of Forensic Mental Health.  He interviewed and assessed you over two interviews.  At the time of the first interview, you were unmedicated.  By the second, you had been prescribed anti-depressant medication which you said had not been working. 

48Dr Glowinski outlined your family history, including that your father is currently in gaol for threatening your half-sister with a knife, and that you were frequently beaten and considered retarded till age 15.  You revealed your step-father had inappropriately touched you between ages 13 to 17, that school was difficult, that you were expelled from two schools in Year 8 for fighting. 

49You completed some Year 12 subjects in Year 11, but you then left school altogether.  You have him a substance use history as well as a psychiatric history.  You told him you were referred to Adolescent Psychiatric Services in Parkville from Year 9, after episodes of self-harm. 

50You admitted self-harm in prison on a regular basis to cope with imprisonment.  You do not wish to speak about your offending, as you’re fearful of repercussions from others.  He found that you were agitated, distressed and tearful, you were anxious, and not sleeping well.

51Dr Glowinski was of the opinion that you appear to have developed disturbed attachment patterns with a history of abuse and drug use, relying on substances or self-harm to regulate your emotions. 

52He indicates clear and strong suggestions that you have an established severe personality disorder, most likely with borderline elements.  It is very likely, says the psychiatrist, that your development has been:

'Profoundly influenced by your trauma history' and that:

'You probably have a post traumatic stress disorder incorporated into your personality development, often referred to as a complex post-traumatic stress disorder.

'Although it is likely that your symptoms are better understood through these prisms of personality disorder and complex PTSD rather than a separate diagnosable psychiatric condition, nevertheless there is quite likely to have been chronic depressive symptoms which have influenced behaviour over the years.'

53In the context of ongoing psycho-sexual dysfunction and substance use, Dr Glowinski considers that it is difficult to distinguish whether some of your symptoms arise from a major mental illness, such as bipolar depressive or psychotic disorder. 

54There is little doubt your psychological state is unlikely to improve while you use substances.  He too thinks the custodial environment presents particular difficulties.

55Determining the issue under s.5 of the Sentencing Act was the focus of the second plea date in late June.  Defence counsel submitted that Dr Glowinski's report also went well beyond the position as advanced on the first part of the plea.

56It was now contended that not only could I find substantial compelling reasons, but I should find that under s.5(2)HC on the balance of probability that you, at the time of the commission of the offence, had impaired mental functioning and as well as that there was substantial and compelling reasons in order to impose a sentence other than the one mandated.

57I should note the prosecution's position as to the mental impairment argument fairly conceded that on the basis of the Forensicare report it appears that you have quite a significant mental illness. 

58However, the position was not advanced because it argued that s.2HC(1) not only required an impaired mental functioning, but one which was causally linked to the commission of the offences and which substantially reduced the offender's culpability and under s.2HC(2) the offender has impaired mental functioning that would result in the offence being subject to substantially materially greater than the ordinary burden or risks of imprisonment.  The prosecution submitted neither of these sub-sections were met on the material. 

59I agree that despite the statements contained in the report of Duncan, McKinnon and Glowinski about an exacerbation of symptoms, this does not suffice to me the substantially and materially greater test in the section.

60However, I am persuaded that the impaired mental functioning was causally linked to the commission of the offences and substantially reduces your moral culpability.

61While it is true that Dr Glowinski does not express an opinion on how the illness or whether the illness might have affected the offending behaviours because you did not discuss the offending in great detail with him.  Both Dr Duncan and McKinnon, make clear that your major psychological illness played a significantly contributing role to your offending.

62In my view these factors cannot, when viewed through the prism of what Dr Glowinski termed 'Complex PTSD', which was incorporated into your personality disorder, be viewed as other than causative; that is, causally linked to the commission of the offence and do substantially reduce your culpability. 

63These factors provide a persistent and pervasive background to your behaviour at the core your offending.  Without these factors it is difficult to conclude you would have been involved in any criminal offending.  In this sense, they caused you to offend in this way.  Your experiences and your damaged moral compass inevitably leads you to this conduct. 

64I have reviewed extensively the authorities which were mentioned during submissions particularly the very helpful judgment of Her Honour Judge Morrish in DPP v Cole [2018] VCC 1788, and I have reviewed all of the authorities cited therein.

65In that case, Her Honour found the test of substantial and compelling was not met.  It is important to note that under s.2H(c) there are a number of matters which the court must have regard to, and others it must not. 

66As was stated in Hudgson, compelling connotes powerful circumstances of a kind well outside what might be described as run-of-the-mill factors typically present in offending of this kind. 

67I note the words, 'substantial and compelling circumstances' is followed by the further, 'exceptional and rare.'  There must be;

'A synthesis or balancing of all relevant matters which must compel the conclusion that the applicant's detention in custody is not justified.'

68In my view the material here goes some way towards this, but ultimately lacks the exceptional or rare quality to become substantial and compelling. 

69Nevertheless, having determined that s.2H(c)(1)is applicable, I also find that sub-section 2HA is not applicable, that is, the exclusion by reason that the impaired mental function was caused solely by self-induced intoxication.

70That is not the case here.  There are factors which pertain to your background and experiences as outlined in the reports, which have impacted on your mental health, which are not caused by self-induced intoxication. 

71Therefore, I find that in sentencing you for a Category 2 offence I can make an order not under Division 2 of Part 3 and therefore, can impose a community corrections order or combination sentence.

72For this purpose, I accept the matters in mitigation I have mentioned above, and ask myself whether I consider that the purposes for which a sentence is imposed, can be achieved by a sentence that does not involve your confinement. 

73I have considered the relevant sentencing snapshots of the Sentencing Advisory Council, No. 2018 and 19, and a number of authorities, and in my view, a community corrections order in combination with time served, can achieve those sentencing purposes of specific and general deterrence, manifest denunciation of the court, protect the community from you and establish conditions which I consider your rehabilitation can be facilitated through.

74I obtained an assessment from Corrections.  They found you suitable and recommended supervision, judicial monitoring, community work with credit to be given in treatment and rehabilitation, a drug treatment condition and a mental health condition. 

75The correctional authorities will also cooperate with Windana Drug and Alcohol Recovery residential treatment with which you have an assessment in mid-August, to facilitate and transition to residential treatment.  I intend to make such an order for a period of 24 months.  Would you please stand, Ms Cui.

76In relation to all four charges; trafficking in a drug of dependence of a commercial quantity, trafficking in a drug of dependence, possession in a drug of dependence and negligently dealing with proceeds of crime, you are convicted and sentenced to 114 days imprisonment to be followed by a community corrections order for two years as I have outlined above.

77I declare that you have served 114 days by way of pre-sentence detention. That, under circumstances pertaining to you, means that you should be able to be released forthwith from custody and be placed on the community corrections order. 

78I have noted that your co-accused was sentenced by me to a term of imprisonment.  His circumstances, and in particular, his prior history and prospects of rehabilitation were substantially different to your situation. 

79I will set a judicial monitoring date two months from today.  Mr Saunders, when the papers are prepared, please, I'm sure you will explain the circumstances of the order to her.  Is there any update from Windana? I take it that is still scheduled to take place?

80MR SAUNDERS:  It is, as I understand it.

81HIS HONOUR:  Yes, all right.

82I will order that Ms Cui perform 200 hours of unpaid community work and I will have 50 of those hours to be credited to those 200 for every hour that she performs in rehabilitation and treatment.  You might also explain judicial monitoring to her.

83MR SAUNDERS:  I will, Your Honour. 

84HIS HONOUR:  Ms Cui, I want to make one thing absolutely clear to you.  I have imposed an unusual sentence on you today because of your background and conditions. 

85During this period of 24 months on which you are on this order, first of all you need to come to court when the judicial monitoring is scheduled. 

86You will need to be of good behaviour in that two year period.  That means abstaining from drugs and that means not committing any criminal offending. 

87It also means that you are going to have to attend supervision appointments with Corrections and you're going to have to attend to community work and importantly, attend to the assessment by Windana. 

88If you breach this order by breaching any of those conditions, it is likely that you will be in contravention of this order and you will be brought back before me and I will be able to impose a punishment for your breach and more importantly, I will re-sentence you on these charges and upon that re-sentence you should have no doubt that you will receive a sentence of imprisonment that is substantial and much closer to what Mr Zhang received in number of years.  Do you understand? 

89I want to make sure that you have no doubt or misunderstanding in relation to what is required from you.  Because, if you breach this order, you really do not leave me much choice, do you understand?

90OFFENDER:  Yes.

91HIS HONOUR:  What I have said to you is going to be transcribed and is going to be part of the sentence, so on a future occasion I will be able to read these comments for myself and remember that I gave you this warning today. 

92Yes, thank you all.

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