Director of Public Prosecutions v Ky

[2023] VCC 1012

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00940

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIEN VAN KY

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February and 15 June 2023
DATE OF SENTENCE:	15 June 2023
CASE MAY BE CITED AS:	DPP v Ky
MEDIUM NEUTRAL CITATION:	[2023] VCC 1012

REASONS FOR SENTENCE
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Subject:

Catchwords:              One charge of cultivating a commercial quantity of cannabis and one charge of theft of electricity – 50 year old male with a criminal history including cultivating cannabis and trafficking in Tetrahydrocannabinol some nine years prior to subject offending – history of acquired brain injury – drug and alcohol abuse – schizophrenia – history of poor compliance with mental health engagement and medication – significant psychosis whilst on remand in custody brought under control by medication but poor insight of offender resulted in his decision not to continue with medication.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997

Cases Cited:DPP v Worboyes [2021] VSCA 169; Verdins and Ors v The Queen (2007) 16 VR 269, DPP v O’Neill [2015] VSCA 325

Sentence:                  Total Effective Sentence of 2 years and 7 months imprisonment with a non-parole period of 1 year and 9 months.

S6AAA: Total Effective Sentence of 3 years and 7 months with a non-parole period of 2 years and 5 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Norris/ Mr T White	Solicitor for Public Prosecutions
For the Accused	Ms H Whalley	Michael J Gleeson and Associates Solicitors

HER HONOUR:

1Vien Van Ky, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis, which carries a maximum penalty of 25 years’ imprisonment.  You have also pleaded guilty to one charge of theft of electricity, which carries a maximum penalty of 10 years’ imprisonment.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[1] 

[1]Exhibit “A”

3On 29 October 2021, police attended a residential property where you lived with your wife, Grace Le[2], and a number of your children. Police had warrants to search the premises pursuant to s81 of the Drugs, Poisons and Controlled Substances Act 1981 and s465 of the Crimes Act 1958. They knocked on the front door. After a short time, you opened the door and, when you saw the police, attempted to shut it. Police pushed the door open and detained you whilst they searched the house. Police located a sizeable amount of dried cannabis on a table and floor of a room at the rear of the house. They also entered the garage, which had been converted into four rooms, where they detected a sophisticated hydroponic cultivation system for cannabis, a total of 171 plants at various different stages of growth. The plants weighed 19.918 kilograms, somewhat less than the defined commercial quantity by weight, which is 25 kilograms. However, the number of plants was well in excess of the defined commercial quantity, which is 100 plants. These facts form the basis of Charge 1, cultivation of a commercial quantity of cannabis.

[2]        A pseudonym.

4Police observed an electrical cable running from the house of the garage.  In a room on the southern wall of the house, there was a bypass which enabled electrical current to bypass the meter box and thus be accessed from the grid without charge.  This is the basis of Charge 2, theft of electricity. 

5You were subsequently interviewed by police during which you made full admissions, namely, that the cannabis was yours, that you grew it because it was just enough for you to buy food and pay utility bills, and that you had just given people small amounts of cannabis and they would give you cash in return.  You stated that you had paid “some people” $1,000 to install the electrical bypass as you could not afford another $7,000 power bill. 

6You told police that it takes approximately two to three months to grow the cannabis and you sell a bag of 100 grams for up to $2,000.  You stated that you set up the cannabis crop and had grown it from small plants which you tended, and that your family were not involved.  You stated that you sold cannabis on the street to people.  You also stated that you believed you had not done anything wrong as you did not realise that what you had done was illegal. 

7Your wife and mother of your children, Grace Le, was charged with and has pleaded guilty to one charge of possessing cannabis simpliciter on the basis that she was aware of the presence of cannabis being grown at the property where she was living with you and the children, but had turned a blind eye to it. Unlike yourself, she had no prior criminal history. She had spent 132 days in custody before being granted bail. Taking this into account, along with the lack of prior convictions and remorseful plea, at a sentencing hearing she was convicted and placed on an adjourned undertaking to be of good behaviour for a period of two years.

8You are presently aged 50 years, having been born in December 1972.  You come before the court with some criminal history of appearances at Dandenong Magistrates’ Court:

·        On 12 July 1996, you appeared on a charge of possessing a prescribed weapon and, without conviction, the charge was adjourned for 12 months.

·        On 29 April 2003, you appeared on charges of wilfully damaging property and recklessly causing injury and, again, were given a without conviction adjourned undertaking, this time for a period of six months.

·        On 9 December 2004, you appeared on a charge of reckless conduct endangering life, for which you were sentenced to a period of six months’ imprisonment wholly suspended for a period of two years; and driving in a manner dangerous, for which you were convicted.  The matter was adjourned for a period of three years on condition that you undertake psychiatric counselling and treatment as directed by your treating doctor.

·        On 18 March 2011, you appeared on charges of assaulting and resisting police, for which you were convicted and fined an aggregate of $500.

·        On 26 October 2011, you appeared on charges of intentionally damaging property and criminal damage, for which you were convicted and fined an aggregate of $1,000.

·        On 20 November 2012, you appeared on charges of cultivating cannabis, trafficking in Tetrahydrocannabinol and failing to answer bail, for which you were convicted and sentenced to an aggregate term of nine months’ imprisonment with four months of that term to be served and the balance suspended for a period of 12 months.

·        On 15 June 2020, you appeared on a charge of driving whilst authorisation was suspended, and without conviction the matter was adjourned for a period of 12 months.

9Slightly less than a year after being charged with the offences for which I must sentence you, you resolved to plead guilty to the charges and formally did so on 17 October 2022.  You have been remanded in custody since you were arrested on 29 October 2021. 

10The matter was listed for plea hearing on 20 February 2023.  On that date, you became agitated towards your wife and upset when you heard the prosecutor mention the maximum penalty.  Also, understandably, you found it distressing because you could hear both the English and Vietnamese languages coming through the headphones which you were wearing in court for the purpose of being assisted by an online Vietnamese interpreter.

11At the February hearing, your counsel, Ms Whalley, stated that you had sustained an Acquired Brain Injury (ABI) in a motor vehicle collision in 1995. Also, your eldest child and your daughter, Leia Ky[3], had told her that you had subsequently been diagnosed with schizophrenia.  You have not worked since the collision, having received statutory benefits from the Transport Accident Commission for some time and since 2002, have received a disability pension.

[3]        A pseudonym.

12Ms Whalley told the court that, although you had instructed that you did not have any formal mental health diagnosis other than drug-induced psychosis in 2008, she was concerned that a Patient Health Summary, from Springvale South Medical Centre, indicated that you were on medication typically used to treat depression, schizophrenia and Bi-polar disorder right up until the time you were taken into custody.  She stated that, you had declined to cooperate with advice from your legal representatives to obtain various materials to assist the court in relation to your mental health status, and also failed to cooperate with an assessment that your solicitor had arranged to be undertaken by Mr Martin Jackson, clinical neuropsychologist, on 13 January 2023.[4]

[4]See report dated 31 January 2023, Exhibit “D1-1”

13I adjourned the matter for further plea hearing to 2 June 2023, to enable your legal representatives to obtain Justice Health records and other material relating to your cognitive function and mental health.  I also ordered that you undergo a psychiatric assessment by Forensicare. 

14In the previously mentioned report of Mr Martin Jackson, neuropsychologist, dated 31 January 2023, which was tendered at the hearing on 20 February 2020,[5] there was a history noted that you had been born in South Vietnam where you attended primary school only.  You arrived in Australia on 15 October 1986 at age 14, and attended Westall High School in Year 7, but only for a month, as your English was not good enough.  You then attended Noble Park Learning Centre, where you learned English as a second language up to Level 6, which Mr Jackson noted was the requisite level for entry into an undergraduate university course.  You then returned to mainstream schooling and completed Year 8 at Springvale High School, followed by Term 1 of Year 9 at Westall High School. Following this apparently you were expelled due to being involved in fights.  You had been doing some farm work whilst still attending school.  After leaving school, you worked in a factory making garden hoses for a while, and then undertook farm work for another two years.

[5]Exhibit “D1-1”

15On 5 December 1995, at the age of 23 years, you were a backseat passenger in a high speed motor vehicle collision.  You were unconscious at the scene of the collision with a Glasgow Coma Score of 7, which necessitated you being intubated.  You were taken to Box Hill Hospital where you were found to have a closed head injury, multiple fractures of the left facial bones, a lacerated tongue and a transverse fractured right tibia.  Your progress was complicated by you developing pneumonia.  It was noted in the hospital records that you also had probable heroin/Benzodiazepine use or abuse and concurrent opiate and barbiturate use, which had added to your decreased conscious state. You remained in the Intensive Care Unit for six days and required IV antibiotics, and your left zygoma was elevated surgically.  You spent a total of 18 days (up until 23 December 1995) at Box Hill Hospital, and subsequently spent a period of time at a rehabilitation centre.

16When you first saw Mr Jackson on the 13 January 2023, he found it impossible to assess you as you did not cooperate with undertaking the requisite neurological tests.  You denied any particular physical difficulties, other than saying that you had little sense of smell or taste following the motor vehicle collision, and claimed that there was nothing wrong with your thinking skills, although since being in prison your concentration was not good.

17Mr Jackson found that you were generally able to speak English well, but had been difficult to engage in the assessment, and you presented as somewhat depressed with a lowered mood and reduced range of emotional affect, with no positive affect at all. 

18Mr Jackson stated that he would be surprised if you did not have an impairment as a result of the accident, given that you had sustained at least a moderate traumatic brain injury, as indicated by a Glasgow Coma Score of 7 at the scene, and were in intensive care for six days and in hospital, overall, for 18 days, followed by apparent outpatient rehabilitation therapy for almost a year.  He stated that a person with that severity of head injury or traumatic brain injury history is highly likely to have some ongoing cognitive deficits, and it is well-known that a loss or change in sense of smell or taste following a traumatic brain injury is associated with significant behavioural change (often aggressive behaviour), as well as lack of insight.  However, Mr Jackson could not ascertain the nature or extent of any sequelae of your head injury because of your lack of cooperation with the formal assessment.  Similarly, he was unable to comment on any nexus between any traumatic brain injury and your offending behaviour at that time.

19At the age of 20 years you had married your wife and co-offender, Grace Le, and, together, you had nine children who presently range in age from 13 to 30 years.  Six of those children were actually present at the family home when it was raided by police on 29 October 2021. 

20Tendered at the plea hearing on your behalf were references from three of your adult children.[6] These referred to you and your wife having always been committed to sacrificing your lives for the happiness of your children, and the fact that you had suffered physically after the motor vehicle collision, as well as mentally – developing schizophrenia, and consequent behavioural problems which would require your wife to help calm you down.  You were said to be socially isolated, having lost a lot of friendships, but took your responsibility towards your children seriously and would drive them to school and for family shopping and the like.

[6]Part of Exhibit “D1-4”

21The references mentioned your remorse. They also mentioned the stress which the family had endured because of problems suffered by your youngest child. He had had behavioural difficulties for a long time and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), a learning disorder and, more recently, Autism Spectrum Disorder.

22At the plea hearing, your oldest child, Leia, gave evidence as to the very special needs of your youngest child and how hard it was to try and keep him controlled whilst both you and your wife were in prison on remand until your wife was released upon bail on the 10^th of March 2022.  She also stated that it had been financially very stressful for the family at the time of offending. Apparently, you were receiving a disability support pension of about $700 per fortnight, and your wife was receiving a similar amount as a carer’s payment for you, as well as $550 per fortnight for the children who were aged under 18 years.  The family was dependent upon Leia’s earnings of approximately $900 per week from a contract she had to provide signage for real estate agents.  She told the court that the restrictions occasioned by the COVID-19 pandemic made it more and more difficult to open homes for inspection and her earnings decreased.  Indeed, for the entirety of 2021, she had no income, albeit that, for a time she received a JobKeeper allowance. She stated that her younger sister, Mia[7], who had casual packing work in a factory, earning approximately $700 per week, also used to contribute to the upkeep of the family, but she lost her job during 2020 and, for some reason, was not eligible for a JobKeeper payment.  Leia and Mia were the only two members of the household who had paid employment prior to the offending taking place.

[7]        A pseudonym.

23Leia stated that the family home is in her name.  It had been purchased some 10 years ago, with the deposit having come from an inheritance from her grandparents.  However, some years ago she had had to refinance the mortgage in order to obtain more money to help out the family finances and the mortgage is now greater than the amount for which the property was initially purchased.  It was clear to the court that there was a very heavy burden placed upon Leia’s shoulders in terms of caring for the family, both financially and practically.

24Pursuant to the request made by the court for a psychiatric assessment by Forensicare, a report by Dr David Trainor, forensic psychiatrist dated 24 May 2023, was provided to the court.[8]  The background history obtained from Dr Trainor concerning your childhood, education and work history up until the motor vehicle collision in 1995 was broadly consistent with that obtained by Mr Jackson.  However, Dr Trainor also had the benefit of your Justice Health records.

[8]Exhibit “F”

25You gave Dr Trainor a history of two psychiatric admissions, one in 2002 and another in 2010. These apparently related to a relapse in your mental health and possibly attempted suicide by drug overdose or jumping from a building.  There was also a history of drug induced psychosis in 2008. 

26Dr Trainor noted that your Justice Health records stated that, when you were received at Melbourne Remand Centre on 31 October 2021, there was no evidence of psychotic or depressive symptoms.  However, on 4 April 2022, it was recorded that you had become distressed and agitated, complaining of auditory hallucinations, fearing for your family’s safety, and believing that others were reading your thoughts, and robots were in control of your body.  It was thought that you most likely had schizophrenia and were commenced on antipsychotic medication, Olanzapine (5 milligrams during the day and 10 milligrams at night).  Subsequently, an entry on 21 April 2022, noted that you had had a longstanding history of auditory hallucinations for some 20 years and your symptoms had worsened in the prison environment, but had improved since being prescribed Olanzapine.  The psychiatry consultant who saw you opined that you had most likely had schizophrenia with low grade psychotic symptoms over the past 20 years, predominantly compensated for by your wife and children in the community, and that your symptoms had intensified while you remain incarcerated following your wife’s release from custody. Around this time, your daughter Leia, had told a psychiatric registrar that you had sometimes talked about hearing voices and getting messages from the television, but that you generally took antipsychotic medication which helped with your anger and mood, and these experiences did not cause significant issues. 

27On 26 April 2022, your Justice Health Records show that you were commenced on the monthly long-acting injecting antipsychotic, Paliperidone, which had been effective in settling your mental state.  However, by 18 November 2022, you refused to continue taking this medication as you did not believe you needed it anymore. You claimed that, in the past, most of your psychotic experiences had occurred in the context of substance use (cannabis, heroin, methamphetamine and alcohol).  Subsequently, you were offered an alternative antipsychotic medication, Aripiprazole, which you stopped taking after a week. 

28Dr Trainor noted that a Patient Health Summary relating to you from Springvale South Medical Centre dated 29 January 2022,[9] had listed antipsychotic medication of Aripiprazole (Abilify), 10 milligrams daily; Risperidone (Risperdal), 4 milligrams during the day and 3 milligrams at night; Olanzapine (Zyprexa), 20 milligrams at night; a sleeping tablet, Temazepam (Temaze), 10 milligrams at night; and an antidepressant/antianxiety medication, Sertraline (Zoloft), 100 milligrams daily.  However, your Justice Health notes recorded that a discussion had been held with your general practitioner, Dr Ong, and that you had only been prescribed Risperidone, 3 milligrams nightly, with occasional Temazepam, and that your mental health had remained stable on these medications.

[9]Exhibit “D1-2”

29Dr Trainor stated that you gave him a history that your childhood had been disturbed by financial hardship such that you sometimes went without food and clothes in Vietnam, as neither of your parents had work.  You received limited schooling and found migrating to Australia difficult in adolescence with limited English skills.  You struggled at school and had to work part-time on a farm.  You also told him that your parents physically punished you if you failed to listen to them.  He considered that it was likely these childhood experiences had made it more difficult for you to successfully regulate your emotional state and made you more impulsive and susceptible to developing conduct issues such as fighting and truancy, although it was difficult to comment more fully without reliable collateral information regarding your developing years. 

30He noted that you had been first admitted to a psychiatric hospital in your early thirties and had had another admission in or about 2011, but had not been followed up by area mental health services for many years.  Although your oldest child had described many years of residual psychiatric symptoms of auditory hallucinations, these did not cause significant issues and you were mostly adherent to antipsychotic medication.  However, he noted that you had become acutely psychotic and distressed in the context of taking no psychiatric medication whilst in custody. He thought that possibly this was related to stress concerning your legal matters and the prison environment.  He noted that your symptoms had quickly resolved when you were commenced on antipsychotic medication by the prison psychiatry team, but you had subsequently ceased taking such medication.  He stated that you describe residual auditory hallucinations and delusions of reference, but were free from persecutory or grandiose delusions and did not present as distressed.

31Dr Trainor considered that you met the criteria for schizophrenia (multiple episodes, currently in partial remission) and thought it likely that your use of illicit substances had exacerbated symptoms of your illness in the past, but there was no evidence of a major mood disorder. 

32Dr Trainor stated that it was unclear to what extent your head trauma in the 1995 motor vehicle collision had impacted upon your functioning and mental health.  He stated that it was possible that your impaired functioning had resulted from the head trauma, but it may also be due to schizophrenia or possibly a combination.  Although, he considered that you had been experiencing mild residual symptoms of schizophrenia whilst in the community he states that there was no evidence of a direct link between this and your offending.  He noted that you were reported to be mentally stable when received into custody. Further, you stated that you engaged in the offending due to financial hardship, partly caused as some of your children had employment difficulties owing to the COVID-19 lockdown.

33Dr Trainor considered that a period of incarceration would weigh more heavily upon you than another prisoner without schizophrenia.  He stated that the stressful environment of prison could be a factor which had contributed to a decline in your mental state and relapse of psychosis.  Also, as you cannot be compelled to take antipsychotic medication in prison in the same way as you can be compelled in the community, you are at high risk of mental health relapse because of having now discontinued your antipsychotic medication.  He noted that your daughter, Leia, had associated this with aggressive behaviour in the past, and it was likely that your risk of suicide would also increase if you became acutely psychotic.  He stated that you claim to no longer use illicit drugs and alcohol, but had been very vague regarding your history of such usage and its impact on your mental health.  He recommended drug counselling and treatment.  If in custody, he advised that you should have ongoing monitoring of your mental health and, if in the community, he suggested that random drug testing as part of a Community Correction Order could provide incentive to abstain from illicit substances.

34Subsequent to the receipt of Dr Trainor’s report, the court received another psychiatric report relied upon by defence.  This was authored by Associate Professor Anthony Cidoni, consultant forensic psychiatrist, and dated 25 May 2023, following his assessment of you on 24 April 2023 (just 13 days after Dr Trainor had assessed you).[10] 

[10]Exhibit “D1-6”

35Dr Cidoni noted that your memory in relation to your mental health history was somewhat impaired, that you had a longstanding history of cannabis use (4 grams per day), heroin use for one or two years around 1994, and that you had also tried methylamphetamine and ecstasy.  He stated that you also described excessive alcohol use, having up to 24 stubbies a day in the last few years albeit that you had promised your wife and children that you would not drink again.

36Dr Cidoni noted your prior diagnosis of schizophrenia and two admissions to hospital, around 2002 and 2010/2011 respectively.  On each occasion, you claim to have been treated in hospital for some months with depot antipsychotic injections and oral medication, having described auditory hallucinations of an unclear nature, believing that your thoughts were available to others and seeing things on television that were identical to your life.  You also described a history of depression and significant suicidal attempts, including jumping from a first floor balcony, jumping off the garage of your home, and also jumping from the fifth to the fourth floor of the maternity ward after one of your children had been born. 

37Dr Cidoni noted the contents a letter from a psychiatric nurse at Port Phillip Prison dated 9 August 2013. This referred to you having been diagnosed with schizophrenia, schizoaffective disorder and an ABI from the car crash, and that you had had two admissions to Dandenong Psychiatric Unit. These included one on 11 July 2011 when you presented with auditory hallucinations and paranoia that people were wanting to rape your wife, to hurt you and steal your money, and ideas of reference from television and radio.  Apparently, you had been non-compliant with your medication for some three weeks prior to that admission and had a history of self-harm during psychotic episodes.  During that admission, you were treated with the depot antipsychotic, Risperidone Consta, 50 milligrams fortnightly, and oral Risperidone, 3 milligrams per day. 

38Dr Cidoni recorded that, in April 2013, you had been treated with the antipsychotic, Aripiprazole, 10 milligrams, and Risperidone, 4 milligrams, however, your last contact with mental health services at Dandenong had been on 4 April 2013.

39Dr Cidoni noted that, in April 2022, at Metropolitan Remand Centre, you had described distressing symptoms of hearing voices and paranoia about the safety of your self and your family, and were referred to the Acute Assessment Unit where you commenced the antipsychotic, Paliperidone Depot, on 26 April 2022, but had subsequently been non-compliant with both the depot and Olanzapine medication which was prescribed for you.

40Dr Cidoni considered that your history was consistent with schizophrenia.  He stated that, although you had experienced associated depression, some grandiosity and hypermania in the past, it was of insufficient duration and symptomatology for a diagnosis of schizoaffective disorder in place of schizophrenia.  He noted the relapse in your symptoms of psychosis after you ceased treatment in custody and considered it important that depot medication be recommenced.  He thought it highly likely that you would disengage from community follow-up without assertive treatment, and your schizophrenia is likely to be persistent.  He also considered that you had cannabis and alcohol use disorders which require specialised substance abuse treatment, and that cannabis use is likely to exacerbate your psychotic symptoms. 

41Dr Cidoni noted your traumatic brain injury, but stated that the extent of impairment associated with it was not clear, given that you had refused to engage in neuropsychological testing.  He could find no clear relationship between your schizophrenia or brain injury and the offending, although your cannabis use disorder was relevant.  He considered your prospects of rehabilitation are guarded and dependent upon the extent to which your conditions can be treated and controlled, noting that your lack of insight into the need for antipsychotic treatment is a barrier, as is your untreated cannabis use disorder.

42Finally, he considered that imprisonment was having a depressant effect on your mood and, given your history of serious suicide attempts, that risk needed to be monitored as you have impaired coping skills because of your schizophrenia and, also, probably because of your traumatic brain injury.  However, he thought that incarceration at least moderated the negative effect of cannabis use on your mental state.  He expressed the view that there was a very high risk that your mental state would deteriorate further in custody with psychotic symptoms, low mood, distress and potentially self-harm and suicide.

43Neither Dr Trainor nor Dr Cidoni had the benefit of seeing the results of a second assessment of you conducted by Mr Martin Jackson, neuropsychologist, on 25 May 2023.  On that date, you did cooperate with neuropsychological testing. The results of such testing are embodied in a report dated 28 May 2023 from Mr Jackson.  It should be noted that, by the time of this assessment, you had resumed receiving regular injections, as well as pills by way of antipsychotic medication.[11] 

[11]Exhibit “D1-7” p.7

44Mr Jackson stated that it was difficult to estimate your premorbid intellectual capacity due to your limited schooling and the fact that English is your second language.  Doing the best he could, taking into account all of the results of tests administered by him, he considered that you were probably of borderline to low average premorbid abilities.

45Currently, he noted that your performance in relation to the following all fell into the extremely low range of ability: attention to visual detail, perceptual integration, basic processing speed on one task, motor sequency, initial learning on new information (improving with repetition), delayed recall of verbal information (but no forgetting), delayed recall of complex visual information and most executive skills (planning, organisation, verbal abstract reasoning, basic concept formation and flexibility of thinking).  He noted that your sequencing span and visual logical thinking fell within the borderline range of ability. Further, falling within the low average to average range (and thus representing your relative cognitive strengths) were most aspects of working memory (immediate memory span and working memory span), basic processing speed on one task, delayed recall of simple visual material and impulse control.

46Overall, Mr Jackson concluded that your results on testing indicated significant impairments in your new learning capacity, attention skills and most executive functions indicative of an ABI.  He thought it highly likely that you had long-term cognitive and behavioural issues following the head injury (traumatic brain injury) sustained in the motor vehicle collision in 1995.  However, he also stated that it was well-known that chronic schizophrenia can result in cognitive impairments, including impairments of attention, memory and executive function, as could your history of cannabis and alcohol abuse.  Regardless of the cause, he stated that your condition relating to your cognitive impairments is now permanent and stable.  He considered it highly likely that you have a lack of awareness and insight into your traumatic brain injury.

47Mr Jackson noted that, prior to the motor vehicle collision in which you received the head injury, you had no criminal history.  After that event, you appeared before courts for offending demonstrating behavioural problems which raised a significant concern that you did sustain a significant behavioural disorder as a result of your traumatic brain injury.  He considered that, given the difficulties you had with executive skills, “It can be argued (emphasis added) that (your) brain injury was a factor in the current offending, as (you had) resorted to a previously learned behaviour in a time of financial difficulty”.[12]

[12]        Exhibit D1-7, p15.

48Mr Jackson went on to note that, in your police interview, you had stated that you did not know that your cultivation of cannabis was illegal, despite the fact that you had served a prison term some 10 years earlier for a similar offence.  He considered that there was a likelihood that your denial could be due in part to the cognitive impairments associated with your brain injury.  He also noted that you did not demonstrate any specific remorse in relation to the offending, as you were very focused on being able to support and look after your family and just wanted to go home, as you were worried about them. 

49I here interpolate that I do not accept your counsel’s submission that the evidence before the court is sufficient to attract principles 1-4 in Verdins’ case.  In this regard, I note that your offending demonstrates that you still had the capacity to plan the cultivation enterprise and successfully nurture the crop, as well as sufficient consequential thinking skills to ensure that you employed someone to divert the electricity used from being processed by the meter because, as you told police when interviewed, you “couldn’t afford another $7,000 power bill”. Also, when police arrived at your home with search warrants you attempted to shut them out.

50I find something of a tension between Mr Jackson’s statements that it is arguable that in cultivating the cannabis you had resorted to previous learned behaviour in a time of financial difficulty (noting in any event that there is no evidence before the court of the circumstances surrounding your 2012 conviction for cultivating cannabis and trafficking) and his suggestion that you told police you did not know that cultivation of cannabis was illegal could be due to your cognitive impairment (presumably memory deficits).  It is clear that in order for limbs 1 to 4 of Verdins to apply there must be some “realistic connection” between any mental impairment and the offending. There must be cogent evidence of the nature, and extent of this possible effect upon an offender’s behaviour and a judge must assess such evidence with rigour[13]. 

[13]        DPP v O’Neill [2015] VSCA 325 paras 71 – 80 pp. 23-27.

51I accept that you do have an acquired brain injury as assessed by Mr Jackson. However, neither Dr Trainor or Dr Cidoni support the connection between any acquired brain injury and your offending behaviour, and, in the circumstances, I find that Mr Jackson’s view that such connection is “arguable” does not meet the requisite standard achieved, after rigorous evaluation of the evidence, in order to reduce your moral culpability. I note the prosecution in its supplementary submissions make a concession that “some reduction in moral culpability is warranted on the medical material”[14]. The fact that your criminal history began after the acquired brain injury might suggest that, but your history is complicated by significant illicit drug use, particularly cannabis, as well as schizophrenia and non-compliance with treatment. However, even though the standard for application of principles 1 to 4 in Verdins case is not met, your acquired brain injury is still relevant to sentencing as part of your personal circumstances. 

[14]MFI-B, para 8

52I do accept Mr Jackson’s opinion that your cognitive deficits are likely to adversely affect your ability to cope with imprisonment, as you are easily overwhelmed and will forget information that you have seen or heard only once.  Also, you take things that people tell you very literally, so you are unable to know if people are trying to mislead you or to ascertain their motives, or to put you at risk of being used by other prisoners.  In this regard, he noted that you tend to stay in your cell alone and avoid people. 

53Although he considered that your brain injury would not deteriorate whilst in prison, as you are not using substances as you were prior to imprisonment, he noted that you did present as being somewhat depressed, and noted the psychiatric opinion that your mental health may deteriorate in prison if not maximally managed and treated.  Both Dr Trainor and Dr Cidoni noted that your psychiatric condition had deteriorated whilst you have been incarcerated on remand and that you had become acutely psychotic and distressed in the likely context of your not taking anti-psychotic medication.  In the light of your prior history of attempted suicide and self-harm both urged ongoing monitoring of your psychiatric state.  In these circumstances I am satisfied that your condition of schizophrenia, (as well as your acquired brain injury) make imprisonment more burdensome than for a prisoner without such conditions in accordance with Limb 5 of Verdins. I am also satisfied that there is a risk that your mental health will again deteriorate whilst you are in custody, enlivening Limb 6 of Verdins.

54Finally, Mr Jackson expressed reservations about your prospects of rehabilitation, given that you have the capacity to learn only simple information with lots of repetition, and lacked the capacity to be able to adapt any new basic specific skills to new situations.  He stated that you have limited (if any) ability to change your behaviour on your own, and would require people to supply you with solutions to situations so that you could rote learn them.  Further, he stated that there is no intervention that will improve your complete lack of awareness and insight and, generally speaking, people with this difficulty are not motivated to change and learn new things if they do not believe there is a problem.  He considered that there is a likelihood of you reverting to well-learned past behaviour if you did not know how to cope with a situation, and this raises a propensity for future offending.

Dr Cidoni was also of the view that your prospects of rehabilitation are guarded, that your lack of insight into the need for anti-psychotic treatment is a barrier to rehabilitation and you have a specific risk of reoffending related to your untreated cannabis use disorder.  Dr Trainor noted your vague history in relation to illicit drug use and urged a need for drug counselling, treatment and careful monitoring, including random drug testing.  Overall, I consider your long term substance abuse, lack of adherence to medication for your schizophrenia, your cognitive deficits relating to memory and the difficulty with learning new information, as well as you lacking insight, make your prospects of rehabilitation less than optimistic.  It is interesting to note that, when you became acutely psychotic in custody, you actually sought help because your symptoms were so distressing and Dr Nicholas Hughes, who assessed you on 6 April 2022 stated then that your insight into the need for treatment was good.  However, subsequent to being stabilised by co-operating with both depot and oral antipsychotic medication, you again ceased to engage with treatment (by November 2022) and only re-engaged again recently prior to being seen by Dr Jackson the second time.  Unhappily, I consider that this is likely to continue to occur whether you are in custody or in the community and it, together with your long term habit of abusing cannabis, are barriers to rehabilitation.

55Mr Dat, the maximum penalty of 25 years’ imprisonment which applies to the charge of cultivating a narcotic plant in a commercial quantity indicates how seriously this charge is regarded by Parliament. In addition, that charge has been legislated to be is a Category 2 offence, which means that this Court must impose a sentence of immediate imprisonment (other than a combination sentence of less than 12 months together with a Community Correction Order), unless one of the circumstances established in s5(2H) of the Sentencing Act 1991 applies. No such exceptional circumstances have been argued on your behalf and, thus, they are not established.

56Illicit drugs cause great harm in our community, and in sentencing for this offence of cultivation, the court must denounce your conduct and place emphasis upon general deterrence.  General deterrence means that in sentencing you, the court must send a message to other people who might be minded to conduct commercial cultivation enterprises that it will be not worth their while to do so because just punishment will be imposed.  In addition, as you have relevant convictions for cultivation of cannabis simpliciter, as well as trafficking, there is some need for specific deterrence in sentencing you.  Having said this, I consider that it is appropriate to moderate both general and specific deterrence to some degree because of your acquired brain injury.

57As has been appropriately conceded by the prosecution, although you admitted to police that you would sell a bag of approximately 100 grams of cannabis for up to $2,000, your offending does not have the indicators of a well-established drug trafficking operation with a hierarchy of offenders or other associated criminal activity that one often sees with the most serious commercial quantity cultivation cases.  However, plainly you knew exactly what you were doing. As previously mentioned, you told police in your record of interview that you had set the crop up, starting from small plants and had personally tended it.  You also admitted to deliberately procuring the services of someone to ensure that you did not incur a large electricity bill associated with cultivating the crop, by installing an electricity meter bypass. 

58In sentencing you, I take into account that you did make admissions to police when interviewed, and it is possible that without the admissions the full extent of your involvement in the crop may not have been apparent. 

59You are entitled to a discount on the sentence which you would otherwise have received because of your pleas of guilty albeit that they were not entered at the earliest possible stage.  Still you have saved the state the time and cost of a trial. 

60A number of the references tendered on your behalf refer to your remorse,[15] I am not convinced on the balance of probabilities that you have true contrition for what you have done, as distinct from being sorry that you have created a situation whereby you and your family have been separated from each other. In this regard, I note that Mr Jackson, in his first report, stated that you did not demonstrate any specific remorse in relation to the offending, as you were very focused on being able to support and look after your family.[16]  Also, as previously mentioned, when Dr Trainor asked what had led you to commit the offences, you stated that you cultivated the cannabis “for fun … I wanted to mix with alcohol … It was only a small amount … I needed the money to buy beers and pay for bills”.[17]  You told Dr Cidoni that you “did not want the offending to happen again. (You) had failed twice and did not want to fail for a third time”.[18]  In my view, this falls short of true remorse, although it may be that your cognitive impairment, schizophrenia and lack of insight make the formation and expression of remorse beyond you.

[15]Exhibit “D1-4”

[16]Exhibit “D1-1”, page 9

[17]Exhibit “F”, page 5, paragraph 45

[18]        Exhibit D1-6, p7 para 53.

61I accept that the primary motivation for your offending was not greed, as distinct from financial stress, relating to the needs of your large family. This was in circumstances where two of your adult children, who had ceased to receive wages amounting to approximately $1,600 in total per week, were no longer able to contribute to the family welfare.  As I stated when sentencing your wife, our society would be in chaos if every family who experienced financial stress took to illicit drug activity. However, it is clear from the material before the court that you are a very family oriented man who is loved by his children.  Although it was a seriously misguided thing to do and a bad example to your children, it is less morally repugnant than someone who callously cultivates a narcotic plant to the detriment of others in order simply to make a profit because he is motivated by greed.

62The other factor which should be taken into account in your favour is that when your pleas were entered in October 2022 there was a serious backlog of criminal trials occasioned by the Covid-19 pandemic restrictions. By your pleas you enabled another trial to be accommodated.  Accordingly, you are entitled to an additional discount for the utilitarian value of your plea in these circumstances.[19]

[19]DPP v Worboyes [2021] VSCA 169

63In sentencing you, I take into account your personal circumstances of hardship following the serious motor vehicle collision in which you sustained an acquired brain injury in 1995, which on the basis of Mr Jackson’s second report, has caused you enduring cognitive deficits.  Unhappily, you have a long association with illicit drug use and you decided to employ your skills in cultivating cannabis at a time of financial need.  It is a great shame, given that you have not been in paid employment since the age of 23 years, that the skills which you put into cultivating this crop could not have been employed in a more worthwhile way.  I here note that, despite lack of engagement with the mental health system with any regularity since 2013, your mental health was apparently reasonably well-controlled by some 3mg of risperidone prescribed by your doctor and the support of your large family. 

64Although, I have found no basis for the application of principles 1-4 in Verdins’ case,[20] I have accepted that the stressful environment of a prison is likely to weigh more heavily upon you than upon a prisoner without schizophrenia and that you are at high risk of mental health relapse if you again discontinue your antipsychotic medication. I also accept that it is likely that your risk of suicide would be increased if you became acutely psychotic.  The difficulty is that whilst you are in custody, unlike in the community, you cannot be compelled to take antipsychotic medication.  The picture is complicated by your lack of insight and concrete thinking style, and other cognitive deficits, all of which have made serving time in custody quite onerous.  You keep to yourself and have little to punctuate your day other than phone contact with your family.  In sentencing you I take this burdensome experience of custody into account, which is attributable to both your psychiatric and cognitive impairments.

[20](2007) 16 VR 269

65As part of the sentencing process, I acknowledge that you have endured significant hardships by an initial 14 days isolation and periods of lockdown since you were taken into custody.  This has involved reduced out of cell hours, a lack of contact visits from family, and also reduced programs and other diversions.  I take this into account in sentencing you.  I also take into account the particularly distressing time you spent in custody in 2022 when you became so mentally unwell that you had to be observed in a Muirhead cell at Ravenhall Correctional Centre for several days before being transported to the Acute Assessment Unit at Melbourne Assessment Prison (MAP), where you remained for a week before being transported back to Ravenhall for intensive care management[21]. I am left in no doubt that you miss your family greatly and have been very worried about your youngest child, aged 13, who has had long-term behavioural problems and, since you have been in prison, has been formally diagnosed with Autism Spectrum Disorder, on top of already suffering ADHD, a severe language disorder, learning difficulties, and a borderline intellectual disability with full scale IQ of 72, with a functioning level significantly below what would be expected of someone usually with such a full scale IQ.

[21]        Ex “D1-8”

66Dr Dzung Le, consultant paediatrician, has opined that your oldest child has effectively had to be your youngest child’s carer, and he requires a great deal of support by way of regular psychological and behavioural interventions, as well as speech therapy and occupational therapy, and substantial support at school.[22]  Fortunately, a National Disability Insurance Scheme (NDIS) plan has now been initiated for him, and some additional supports are available to relieve the stress on the family.

[22]Report of Dr Dzung Le dated 13 February 2023,  tendered as Exhibit “D2-4” on the plea of co-accused, Grace Le

67Your counsel has conceded, appropriately, that in all of the circumstances, there is no sentence available other than that of a term of imprisonment with a non-parole period.  I have arrived at the following sentence after careful consideration of the matters to which I have already referred.  I am of the view that it is in the interests of your rehabilitation, and of the community, for you to be released back into the community on parole sooner rather than later, so that you can be linked with an area community health centre and have your antipsychotic medication carefully monitored.  Otherwise, I agree with Dr Trainor that there is a high likelihood that your mental health will deteriorate in prison.  Obviously, whether   you are granted parole it is not a matter for me but for the Adult Parole Board. As there is a delay of quite some months between the making of an application for parole and the consideration by the Parole Board of such application,  I would urge your legal representative to assist you in making an application as soon as possible.

68On Charge 1, cultivation of a commercial quantity of cannabis L, you are convicted and sentenced to be imprisoned for a period of two years and two months.

69On Charge 2, theft of electricity, you are convicted and sentenced to be imprisoned for a period of five months.

70The sentence of two years and two months’ imprisonment imposed on Charge 1 is the base sentence, and I direct that the sentence imposed on Charge 2 be served cumulatively upon it.  The total effective sentence is thus two years and seven months’ imprisonment.

71I direct that you serve a period of 1 year and 9 months’ imprisonment before becoming eligible for parole.  I declare a period of 594 days of pre-sentence detention to be time reckoned as already served under the sentence imposed this day.

72Pursuant to s6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 3 years and 7 months with a non-parole period of 2 years and 5 months.

As you have been convicted of a Schedule 1 offence, namely cultivation of a narcotic plant in a commercial quantity, namely cannabis L, and being satisfied that the property referred to in the schedule was used or was intended to be used in or in connection with the commission of the offence, or was derived or realised directly or indirectly from the commission of the offence, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the schedule. I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed. The schedule includes an electrical bypass, two quantities of dried loose cannabis, a total of 171 cannabis plants, and one snaplock bag containing dried cannabis.