Director of Public Prosecutions v Fees

[2022] VCC 460

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 21-01238

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANNA FEES

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2022
DATE OF SENTENCE:	11 April 2022
CASE MAY BE CITED AS:	DPP v Fees
MEDIUM NEUTRAL CITATION:	[2022] VCC 460

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Trafficking in a drug of dependence (3 charges) – Possess a prohibit weapon (1 charge) – Deal with property suspected of being the proceeds of crime (1 charge)

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Boulton v The Queen [2014]; Borg v The Queen [2020] VSCA 191 VSCA 342; Worboyes v R [2021] VSCA 169.

Sentence:  Combination sentence – term of imprisonment of 29 days – 12-month Community Correction Order with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Hannan	Office of Public Prosecutions
For the Accused	Mr D McGlone	Ajak Wolan & Associates

HER HONOUR:

1Anna Fees, you have pleaded guilty to 3 charges of trafficking in a drug of dependence (139g of methylamphetamine, 11.3g of MDMA and 442g of cannabis), each of which carries a maximum penalty of 15 years’ imprisonment. You have also pleaded guilty to related summary offences of possessing a prohibited weapon (a taser – summary charge 13), for which the maximum penalty is 240 penalty units or 12 months’ imprisonment, and of dealing with property suspected of being proceeds of crime ($5673.60 in cash – summary charge 14), for which the maximum sentence is 2 years’ imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening and I sentence you on the basis of the facts contained in that document. The charges arise from offending in North Melbourne on 20 October 2020, during a period of lockdown due to the COVID-19 pandemic, when you were a passenger in the car being driven by your then de-facto partner, Vu Quoc Nguyen. Mr Nguyen was your co-accused in respect of charge 1, which was put on the basis of joint possession for the purposes of sale. The car was pulled over by police in an area known to police for high drug activity. The car was searched. Quantities of methylamphetamine were found in your shoe and in two Louis Vuitton purses located in the car; quantities of MDMA were also located in your shoe, your jeans, in a backpack you were holding, and in the boot of the car. The cannabis, taser and cash were located in the boot of the car. A small amount of cannabis was also located on the back seat of the car. Your iPhone was found to contain messages consistent with trafficking in MDMA.

3You have one prior conviction for possession of drugs of dependence, for which you were fined $1500.00. You have no pending or further matters.

4Following a sentence indication, Vu Quoc Nguyen pleaded guilty on 11 February 2022 to one charge of trafficking in a drug of dependence (relating to the methylamphetamine jointly possessed for sale with you), one charge of possession of a dug of dependence (in related to a small amount of cannabis found in the tool box on the back seat – which was jointly possessed with you), two further charges of possession of a drug of dependence (for small amounts of cocaine and MDMA located on him when searched); and a summary charge of committing an indictable offence on bail. He was sentenced to 34 days’ imprisonment (which was time already served as PSD) in combination with a 12-month CCO with conditions of unpaid community work and drug treatment and rehabilitation.

5You were on remand for 29 days before being granted bail on 18 November 2020. The matter resolved to a plea on 15 November 2021.

6Your counsel relied on the following documents: an outline of written submissions, the CISP Final Progress Report (dated 9 June 2021), two reports of your mental health clinician, Susan Young (dated 5 November 2021 and 22 January 2022), a psychological report by Carla Lechner (dated 16 March 2022), and two references (one from your current employer and one from the friend with whom you have been living since being granted bail).

7Your personal circumstances as contained in the above documents may be briefly summarised. You are 51 years old, the youngest of 9 children, born in Thailand. Your family migrated to Australia in 1983. You are an Australian citizen. You completed Year 12. At this time you met Vu Quoc Nguyen and you subsequently had 2 children together: a daughter aged 28 and a son aged 18. You studied Graphic Design for a time, then worked full-time as a shoe designer for about 10 years; before working in medical reception and other roles. You re-trained as a chef and worked in hospitality for about 8 years as well as running a catering business.

8Your relationship with Mr Nguyen was fraught for a number of years, particularly after you learned in 2017 that he was dealing drugs and having relationships with other women while you were away working. You threw him out of the home on a number of occasions but were manipulated by him to permit him to return. You became so depressed that you were unable to work. Your symptoms were worsened by the death of your sister in 2017 and by the death of your mother in 2018, and you self-medicated with a number of drugs.

9Shortly after being bailed, you commenced counselling with mental health clinician, Susan Young, and moved in with a friend. Ms Young reported that you presented with high levels of depression and anxiety, had suffered badly from being separated from your son while on bail, and were particularly depressed in 2021. Ms Lechner diagnosed you with a Major Depressive Disorder and noted that you were quite isolated at present because you do not drive, your daughter refuses to allow you contact with her young children until you resolve your drug issues, and you have been separated from your son. You expressed remorse to her for your offending. She noted that you were not taking the anti-depressant medication prescribed to you because of a concern about developing a dependence on that medication. You had found part-time work painting in a friend’s painting business, and this has helped distract you to a degree. Ms Lechner noted that the positive factors in your circumstances are that you have finally separated from your husband, have engaged in mental health counselling, and have resumed working.

10The friend with whom you have been living indicated that you have greatly assisted her while she studies nursing with home schooling her daughter during lockdown, and have been offered full time work as a painter. Your current employer has more work for you once you are free of your bail conditions.

11Your counsel relied on your early plea of guilty, your remorse expressed to Ms Lechner, your final separation from Mr Nguyen, your engagement with mental health counselling, your compliance with bail conditions, your obtaining of employment and the absence of further matters. He submitted that in the circumstances, and particularly in the light of the sentence imposed on Mr Nguyen, all the relevant sentencing considerations could be met by the imposition of a CCO either alone, or in combination with time served. 

12In the light of the sentence imposed on Mr Nguyen, and the matters relied upon by your counsel, the prosecution conceded that a combination sentence, involving time served, was open.

13You were assessed at my request by Corrections Victoria and by the Mental Health Advice and Response Service earlier today. The report from Corrections notes that you have insight into the reasons for offending and your depression-related drug-taking, have maintained independence from your co-accused, and are suitable for a CCO with conditions of supervision, unpaid community work, mental health treatment and drug treatment and rehabilitation. The MHARS report noted that you have been feeling isolated from family who live in the western suburbs, and have trouble sleeping and lost weight. You said that you ceased smoking cannabis after being charged. The report recommended that you receive ongoing psychological treatment and also some psychoeducation relating to the benefit of anti-depressant or other prescribed medications.

14I accept the matters put on your behalf by your counsel. The offence of trafficking is a very serious one, and considerations of denunciation, just punishment, general and specific deterrence loom large. On the other hand, I note that you have no priors for such offending, which occurred during a period of marriage breakdown and mental health vulnerability against a background of a strong work history. You have expressed remorse to Ms Lechner for your offending, and your early plea of guilty warrants a discount in sentence. In addition, you are entitled to an additional amelioration of sentence for making your plea during the currency of the COVID-19 pandemic.[1]  The cases of Boulton[2] and Borg[3] make it clear that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

[1]        Worboyes v R [2021] VSCA 169.

[2]        Boulton v The Queen [2014] VSCA 342.

[3]        Borg v The Queen [2020] VSCA 191.

15For the above reasons, I consider it appropriate to impose an aggregate sentence of imprisonment of 29 days in combination with a CCO of 12 months duration, with the following conditions: 100 hours of unpaid community work; drug treatment and rehabilitation, mental health treatment and rehabilitation. I indicate that all of the hours of unpaid community work can be satisfied by attendance at such treatment and rehabilitation. I declare 29 days of PSD to be reckoned as already served.

16You will need to report to Rosebud Community Correction Centre within 2 working days once the order commences.

17The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 12 months from its commencement - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

18Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence which itself is punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment.

19Do you consent to the making of a CCO?

20Pursuant to section 6AAA of the Sentencing Act, I indicate that, had you been found guilty by a jury of the charges, I would have sentenced you to a term of imprisonment of 9 months in combination with a 12-month CCO.

21I note that the prosecution has sought a forfeiture order for the taser and $5673.30 cash, and a disposal order for the seized drugs and related paraphernalia. I will make those orders.