Director of Public Prosecutions v Dau

[2022] VCC 1057

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01793

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI KIM THI DAU

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2022
DATE OF SENTENCE:	1 July 2022
CASE MAY BE CITED AS:	DPP v Dau
MEDIUM NEUTRAL CITATION:	[2022] VCC 1057

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Cultivation of a narcotic plant; negligently dealing with proceeds of crime; possession of a drug of dependence

Legislation Cited:  Sentencing Act 1991 (Vic);

Sentence:18 month Community Corrections Order (150 hours community work, mental health treatment); 12 month Community Corrections Order (75 hours community work)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused Dau	Mr S. Tovey	Melasecca Kelly Zayler

HER HONOUR:

1Thi Kim Thi Dau, you have pleaded guilty on indictment to charges of cultivation of a narcotic plant, namely cannabis; negligently deal with the proceeds of crime and possession of a drug of dependence.

2In sentencing you for your crimes, I am obliged to take into account the maximum penalty for each of the offences you have committed.  The maximum penalty for cultivation of a narcotic plan is 15 years imprisonment.  For negligently deal with the proceeds of crime, the maximum penalty is five years imprisonment.  For the charge of possess a drug of dependence, in your circumstances, the maximum penalty is one year imprisonment. These maximum penalties reflect the seriousness with which parliament regards these offences.

The offending

3The circumstances of your offending are set out in a document entitled “Summary of Prosecution Opening for Plea” dated 28 June 2022.  This is an agreed document, and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

Charge 1

4In terms of Charge 1, in short compass, shortly after 6.30 am on 12 March 2020, police executed a search warrant at a residential property at
51 Northcliffe Road, Edithvale.  On entry police identified modifications to the house to accommodate a sophisticated hydroponic setup for the cultivation of cannabis plants. The electricity meter had been bypassed and four rooms had been fitted out, with high wattage globes, light shrouds, transformers and a self-watering system. You are not said to be responsible for that setup.  Investigators removed some 86 cannabis plants, weighing a total of 79.2 kilograms from the property.

5A child's painting was also located, identified with the name “Ivy” and dated
26 February 2020.  The painting was connected to a piece of paper, with the words, “Keysborough Freedom Club”.  Further enquiries allowed police to identify that a child called Ivy was associated with that club and lived at
5 Burraneer Drive, Keysborough.  

6You lived at that address with your daughter, Ivy and 16 year old sister Wendy.

7In terms of Charge 1, cultivate a narcotic plant, the Crown case is that you attended the Edithvale property on a single day, being 7 January 2020.

Charges 2 and 3

8In terms of Charges 2 and 3, shortly after 6.35 am on 13 March 2020, police executed a search warrant at your address in Keysborough.  You were present together with your daughter Ivy and your 16 year old sister Wendy. Another person who resided at the property was found in an upstairs bedroom. 

9Police did locate a garbage bag with loose plant material, found to consist of 2.34 kilograms of cannabis.  This is not the subject of charge but part of the factual circumstances.

10In the study, investigators located and seized the items referred to in Charge 2 on the indictment, namely $760 in cash, one Louis Vuitton watch, three Hermes handbags, one Fendi bag, two Hermes belts and three Hermes bracelets, which are the proceeds of crime.  You are said to have negligently dealt with those items.

11Inside one of the bags were 11 pills, identified to be MDMA and are the subject of Charge 3, possess a drug of dependence.  The total weight was 6.4 grams. 

12You were arrested and interviewed by police with the assistance of interpreter. 

13You were remanded for two weeks, before you obtained bail.

Offence gravity

14In terms of Charge 1 on the indictment, cultivate a narcotic plant, namely cannabis, the Crown case is that you attended the Edithvale property on a single day, being 7 January 2020.  The prosecution is unable to establish the state of the cannabis crop, in either size or scale, on that day.

15I accept that your exact role cannot be determined but it is accepted as being the provision of support to a primary offender, who has pleaded guilty to the more serious charge of cultivating cannabis in a commercial quantity. You were in an intimate relationship with that co-accused, and your actions are said to be at his behest.  You instruct that your role was to clean and remove rubbish, knowing that this would be of assistance to the cultivation enterprise.  This position is not challenged.  The charge against you has a lower maximum penalty than that faced by your co-accused, and as stated is particularised as being on a single day. Overall your offending would have to be seen at the lower end of the scale for offending of its type. 

16Through your plea you accept that you did play a role in the cultivation of cannabis at the property as outlined. Cannabis is a drug which wreaks havoc in our community, in terms of addiction, mental health and the behaviours, including criminal offending, which result from its use and abuse.  Deterring others from playing a role, any role, is paramount.

17Charges 2 and 3 are less serious by comparison.  Charge 2, obviously involves high value items, but in circumstances where you are negligent as to their source. Charge 3 is relatively minor. 

Plea of guilty

18In terms of your plea of guilty, the Sentencing Act obliges me to take into account the stage at which you entered your plea.  Your matter resolved in June of this year at a listed sentence indication hearing that did not proceed, as you instead indicated your willingness to plead guilty.

19I am told that this decision was in the context of a previous offer to the Crown in the exact same terms, which had been rejected by the prosecution approximately a year earlier.  This is relevant to the sentencing exercise.

20Given the matter resolved to a significantly less serious charge than that on which you were committed to stand trial, I do consider your plea of guilty to be at an early opportunity.  There is clear value in saving the witnesses of a need to give evidence and there is value in saving the community the time and expense of contested proceedings.

21Your decision to plead guilty in the context of the COVID-19 pandemic, has additional value, as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted by the pandemic and many trial dates remain as yet unfixed.

22Based on the materials before me, I also accept that your plea of guilty is one of remorse. 

23These factors will be taken into account in your favour. 

Delay

24The delay you have experienced is also relevant to the sentencing exercise. 

25This offending occurred in early 2020 and you were charged at that time.

26Committal proceedings were finalised in December of 2020 and your initial directions hearing occurred in this court on 25 January 2021.  The matter was listed for case conference in September of 2021, in circumstances where the parties had been unable to resolve the matter, and as outlined, in circumstances where you had offered to plead guilty to what in effect is the current plea indictment.

27As outlined the matters resolved on 20 June 2022 and in terms as previously offered by you. 

28You have therefore been subject to the stress of ongoing proceedings in that context.  This is relevant in your case in any event, but more so given the content of the psychological report tendered on your behalf.

29In general terms, this period can also be used to assess your prospects for rehabilitation. 

30I am told that you have not re-offended during that period of time, which is now one of some two years and three months.  On those facts alone, your prospects of rehabilitation would have to be good, if not, excellent.

Personal circumstances

31In terms of your personal circumstances, you have no prior criminal history, lending some weight to the submission that your offending has a degree of context.

32You were born in Vietnam and are presently aged 31 years.  You are the eldest of six children. 

33Your father trained as a doctor and your mother as a pharmacist.  Approximately 10 years ago, each left their professions to start their own business. Your parents had high expectations of and for you.  You describe your childhood as a positive one. 

34You did complete an equivalent Year 12 education, before enrolling in University. 

35You have a close relationship with younger sister Wendy, who resides with you, and is the only member of your family in Australia.

36You came to Australia in November of 2013, on a student visa, at which time you were aged 22 years.  You began an English course at Latrobe University but found this experience isolating. You believe that your mental health began to decline around this time. 

37You met Mr Lai Le, commencing a relationship in 2014.  By the middle of 2015 you were married and you were pregnant with your daughter Ivy.  You discontinued your studies once this relationship commenced.  You kept this relationship from your parents.  Nevertheless, you felt that you had let your parents down by not continuing with your studies, and by forming a relationship with someone with whom you knew your parents would not approve.

38You obtained a spousal visa.  Your daughter Ivy was born in February of 2016.  You told your parents about your pregnancy one month prior to Ivy's birth.  Unfortunately, you suffered post-partum depression.

39Mr Le travelled to Tasmania in 2017 and whilst there was arrested and remanded for offending unrelated to you.  He was imprisoned and your relationship with him broke down in 2019 largely related to this factor.  You do maintain some contact sending him photos of Ivy and keep him informed as to her progress.  Your parents are unaware of this situation.

40You apparently secured work as a nail technician but left when Ivy became unwell.  There was a deterioration in your mental health and you spent a lot of time socialising with Vietnamese men who would shower you with gifts and money which you say includes the items the subject of Charge 2.

41One such relationship was with your co-accused, Quang Van Le.  Mr Le failed to appear at his sentencing on 9 February 2022. 

42In December of 2021 you gave birth to your second child, Edward, and you are currently pregnant with your third child, due towards the end of this year. Throughout these proceedings, you have been concerned about your sister's welfare should you be incarcerated and have to leave her with the responsibility of your children, as you did during the period of your remand.  You have not told your parents about these proceedings.

43A letter from Bach Yen Nguyen, psychologist, dated 23 February 2022, notes that at that time you had symptoms of depression and anxiety within the severe clinical range.  It would appear that upon the birth of Edward you also suffered post-partum depression. 

44A letter authored by Dr Christine Pham dated 7 March 2022, confirms your post-partum depression, and is a response to your referral to Bach Yen Nguyen for psychological treatment.  At the time of Dr Pham's letter you were prescribed anti-depressants but with little benefit.

45Tendered on your behalf was a psychological assessment of you authored by Mr Luke Armstrong, psychologist, dated 15 June 2022. 

46I have had recourse to the full document, it is not the subject of challenge.  Mr Armstrong expresses concern that your diagnosed post-partum depression is aggravated by situational factors and that your condition remains chronic. He also described your depression as severe.  You are presently unmedicated due to your pregnancy and have only recently commenced psychological treatment.  Mr Armstrong is concerned that your condition will deteriorate on the birth of your third child. In his opinion, you require structured support from multiple treatment stakeholders including maternal health care, family support and psychological treatment.  Your need for treatment is an immediate one.

47Ms Dau, this is something you will need to grapple with given the impending birth of your third child, your history of post-partum depression, and your express desire to be a good mother - something that will be difficult to accomplish if you are not psychologically well.

48Whilst not strictly stated in his report, given the context of the material before me, and the content of it, in relation to your mental health I am satisfied that your level of depression is such that any prison experience would be more burdensome for you than someone without your presentation.  It is also likely that your mental health will deteriorate.  These are factors I do take into account.

49There is nothing in the materials before me which indicates that your poor mental health elevates your risk of re-offending.  Although I note your offending does appear to occur in a period of poor self-care in terms of your mental health.

Prospects of rehabilitation

50I have already made some reference to your prospects for rehabilitation. 

51You have no prior convictions and your offending was in a particular set of circumstances, closely related to your relationships at that time.

52As a direct consequence of your offending, you spent some 14 days in custody, having never been exposed to that environment previously.  I am told that you found this experience overwhelming and that you were particularly distressed about being separated from your children.  It gave you the opportunity to reassess your life.

53I am satisfied that this relevantly brief exposure to remand is capable of having degree of sanction and, in your case, as acting as a deterrent into the future. 

54You have stable accommodation in Keysborough, where you live with your two children and your younger sister.  You are financially supported by your parents. 

55You are to be encouraged to seek the supports which are recommended to you, in order to secure your well-being, that of your family, and reduce your future risk.

56Again, I am satisfied that in that context, and if you do seek relevant supports, that your prospects of rehabilitation could be, as I previously described, excellent.

Sentencing submissions

57Your counsel contends that given your lack of prior criminal history, the gravity of your offending, the lack of offending since, the experience you had of your time on remand, your familial responsibilities and your mental health, that all relevant sentencing considerations can be reflected in the imposition of a Community Corrections Order.

58I accept in the context of those submissions that the need for the weight to be given to both specific deterrence and protection of the community is considerably reduced.

59The Crown do not seek to challenge the submission as to the appropriate sentencing disposition. 

60Accordingly, I have had you assessed as to your suitability for a Community Corrections Order.

61An assessment outcome report dated 24 June 2022 advises that you expressed considerable remorse and regret for your behaviour.  You were assessed as presenting with a low risk of re-offending.  You were assessed as suitable for a Community Corrections Order.

62A Mental Health Advice and Response Service assessment dated
28 June 2022 recommends that ongoing assessment or treatment of your mental health be made a condition of any Community Corrections Order in order to promote your well-being and reduce your risk of re-offending.

Sentencing

63The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim. 

64I am required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure where possible that offenders are rehabilitated and are reintegrated into society.

65I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.  Parsimony also has relevance.

66I make the ancillary orders for forfeiture and disposal of various items in the terms as sought, noting they are made with your consent. 

67I have taken into account the fact that you did spend 14 days on remand. 

68I accept that the submission made on your behalf, that the delay itself has been a considerable punishment.

69In relation to Charge 3, possess a drug of dependence, you are convicted and discharged.

70In relation to Charge 1, cultivate a narcotic plant, you are convicted and placed on a Community Corrections Order for a period of 18 months.  That order would have been of greater duration, but for the factors raised on your behalf.

71During that time you are to complete 150 hours of community work.  You are to be supervised by the Office of Corrections and you are to undergo assessment and treatment for your mental health.  100 hours of treatment are to be offset against the community work ordered.  I take the view that the duration of the order and the community work imposed represent significant punishment.

72In relation to Charge 2, negligently deal with the proceeds of crime, you are convicted and placed on a Community Corrections Order, for a period of
12 months.  During that order you are to complete 75 hours of community work, 25 hours of which will be cumulatively on the order made on Charge 1, to represent the separate nature of that offending.

73In addition to the conditions I have imposed, there are standard conditions.  The first and foremost of those is that you must not commit any other offences, which could be punished by imprisonment during the duration of the orders I have imposed. You must also report within two working days to the nearest Community Corrections Office, which in your case I understand to be Dandenong.  You must advise your Corrections Office of any change of address of where you are living or working, and do so within two clear working days.  It is a term of all Community Corrections Orders that you submit to visits as directed and obey all of the instructions and directions of a corrections officer.  You cannot leave the State of Victoria without the prior permission of your supervising Community Corrections Office.

74Ms Dau, this order presents you with a chance to continue to change our life in a positive fashion -should you choose to take up that opportunity, and the supports that I intend be made available to you.

75The order can be breached if you do not comply with it, in terms of the conditions, or re-offend whilst either order is in place.  If you do, you may need to appear before me for contravening the order or orders and I may have to re-sentence you on the original charges, as well as to sentence you for contravening the corrections orders.

76Section 6AAA of the Sentencing Act, is not required in these circumstances.

77I cannot place you on these orders without your consent.  I will give you the opportunity to speak to Mr Tovey or your instructing solicitor about that consent and to do so, I will stand down temporarily.  Before I do so, is there anything I missed in terms of the sentencing or the facts or orders that are sought?

78MR TOVEY:  Nothing we picked up, Your Honour.

79HER HONOUR:  All right, Mr Cameron? 

80MR CAMERON:  No.

81HER HONOUR:  All right well I'll stand down temporarily so that you can speak with your client Mr Tovey.

82MR TOVEY:  Thank you, Your Honour.

(Short adjournment.)

83MR TOVEY:  Thank you, Your Honour.  With the assistance of the interpreter, my client's been taken through the conditions of those orders and Your Honour should have just been handed a pair of signed orders for those two as outlined by the court.

84HER HONOUR:  Certainly Mr Tovey, from the materials I've read, it's imperative that Ms Dau gets help for her mental health.

85MR TOVEY:  Yes.  There's a strong understanding that, that really is going to be the lynchpin to what potential future success looks like.

86HER HONOUR:  It's an illness the same as any other.  It can be treated and it will offer her and her children a better way of life.  From my perspective of course, that means she's not at risk of coming back before this court, because I don't want to deal with a contravention.

87MR TOVEY:  And I can assure you, Your Honour, Ms Dau doesn't want to come back.

88HER HONOUR:  Yes.  All right well, I've been certainly blessed to have the two of you in this matter.  I'm very grateful for all the assistance that you have given me.  I appreciate that you didn't do it alone, that you've both got very able instructors.

89MR TOVEY:  We do, certainly Your Honour.

90HER HONOUR:  So, thank you to all, and I'll close the court until 10 am on Monday, thank you very much.

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