Director of Public Prosecutions v Ly

[2018] VCC 1579

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00874

DIRECTOR OF PUBLIC PROSECUTIONS

v

HONG PHUC LY

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August; 12 & 21 September 2018
DATE OF SENTENCE:	26 September 2018
CASE MAY BE CITED AS:	DPP v Ly
MEDIUM NEUTRAL CITATION:	[2018] VCC 1579

REASONS FOR SENTENCE
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Subject:  Sentencing
Catchwords:  Plea of guilty; Cultivate commercial quantity of cannabis.

Legislation Cited:                   Sentencing Act 1991 ss. 5(2H)(e); 6AAA; Migration Act 1958 (Cth) s. 201

Cases Cited:  DPP v Dalgliesh [2017] HCA 41
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Upton	OPP
For the Accused	Mr C Hooper	Richard Revill Lawyers

HER HONOUR:

1Hong Phuc Ly, you have pleaded guilty to a charge of cultivating a commercial quantity of a narcotic plant, namely cannabis. 

2The maximum penalty for this offence is 25 years' imprisonment.  That is the second-highest maximum sentence in this state.  That shows how seriously this type of offending is regarded by Parliament on behalf of the community.

3On 13 December last year, police executed a search warrant at the house where you were living in Melton West.  They found that apart from the front bedroom where you and your younger daughter slept, there were four bedrooms set up to cultivate cannabis plants hydroponically.  Windows of these rooms were covered so that light could not escape. There had been an electrical bypass installed near the meter box so that the quantities of electricity being used would not be recorded.  You are not charged with theft of electricity, but the fact of the bypass having been installed indicates that there was planning and some sophistication in the setup of this house.

4When police first knocked on the front door, it was not opened.  Some police went to the side of the house and observed a glass sliding door open.  They believed that was you trying to leave.  In the meantime, your daughter, Tran, had opened the front door and as police entered, they saw you walk into the master bedroom and attempt to hide behind a door.

5Inside the house, police found a hydroponic cultivation of cannabis in place, as I have said, occupying four rooms.  They found a total of 68 plants which a botanist subsequently confirmed as cannabis, and that their total weight was 47.99 kilograms.  The commercial quantity for cannabis is 25 kilograms or
100 plants, so these constituted almost twice a commercial quantity by weight.

6Amongst the equipment found for the growing of the plants, your fingerprints were detected on light shrouds in two of the rooms. 

7You were interviewed that day by police.  You said you had been living at that house for a few months, and the plants had been there for about two months. You named a man whom you said owns the house and was responsible for the plants.  There was some confusion about leasing the house, and in the end,
I cannot make anything of that.  You said that this man had offered to let you stay there, charging very little rent.  You admitted moving some of the materials into the house to assist this man, but you denied any other involvement in growing the plants.

8You also said that your younger daughter, who lived with you there, had no knowledge of the plants.  I do not accept that anyone sleeping in that house would not have smelt the plants or seen any of the rooms used for the cultivation.  I assume that you said that, that she did not know, in order to protect your daughter.

9Although you told police that the man you named often stayed at the house, a neighbour interviewed by police said he had only seen a male outside the premises, whereas you and your daughter had been seen entering and leaving.  Police found only female clothing in the house, and nothing on the couch to indicate anyone had slept there.

10You were arrested and remanded in custody on the day the cannabis was found, and have been in custody ever since.  An application for bail was made in March, but was refused.  The time you have spent in custody so far is more than nine months, and it will be counted towards your sentence.

11I must assess the seriousness of this offending and your role in it.  The amount of cannabis found was almost double the threshold amount in weight for a commercial quantity of these plants.  The cultivation was occurring in four bedrooms of the house, and the fact that there was an electricity bypass installed shows that there was some sophistication to the setup. On the other hand, this is by no means the largest hydroponic cultivation of cannabis in a house that comes before this court. 

12Your lawyer says that apart from admitting to assisting by carrying some of the items into the house for a man who was supplying you with housing there for little rent, you had nothing to do with setting up the crop, and nothing to do with the ongoing tending to it. I do not accept that your role was quite as limited as that.  As the prosecutor pointed out, you told Dr Walton that you were to receive $4,000 for your role when the crop was harvested.  That indicates that you had a direct financial interest in the plants reaching harvest, in addition to having somewhere to live at minimal rent.  The fact that you were sleeping at the house is part of the minding process for the crop.

13You do not appear to have been a user of cannabis or other illegal drugs yourself.  You knew that doing anything to assist with the growing of those plants in that house was illegal.  However, there is nothing to indicate that you organised the crop or yourself set it up or bought the plants, and apart from being promised a significant sum of money when they were harvested, there is nothing to indicate that you were likely to share in profits beyond that sum.

14It may be that you are taking the blame for others whom you know, but I cannot speculate about that.  It is clear that you were living in the house with the crop and effectively minding it, at least, by being there.  Even though you had a financial motivation, I assess your involvement as at a relatively low but not the lowest level of blame for this type of offending.

15However, this court sees many of these arrangements with people such as you, who have no long-term involvement with drugs or other offending, agreeing to mind or assist with the growing of cannabis, usually hydroponically cultivated and often in suburban houses, where the quantity intended is a commercial quantity and somebody stands to make significant profit by spreading the availability to members of the community of an illegal drug. For this reason, this type of offending requires sentences that convey general deterrence and denunciation.  It is important to send a message to those who think that they can make easy money from minding cannabis crops, that they are likely to be caught and face serious punishment as a result, and that the community strongly disapproves of this behaviour.

16Although I consider that you tried to minimise the extent of your involvement,
I take into account that you did indicate from an early stage that you would plead guilty.  That means that your sentence will be reduced for saving the community the time and cost of disputed hearings.  It also shows that you have taken responsibility for this offending. I also take from the plea of guilty and other evidence of what you have said, that you very much regret becoming involved in this offending.  I accept that you probably did not understand quite how serious this type of offending is.  I shall tell you at the end of your sentence what it would have been if you had not pleaded guilty.

17I turn now to your personal circumstances.  There is some uncertainty about your birth date, but I take you to be now aged 54.  You were born in Vietnam, where I am told that you had minimal schooling before going to work in your family's grocery store.  I accept that your life there was hard, and I am told that you grew up and lived in poverty.

18In your 20s, you started a relationship with a man which lasted some 20 years.  You have two daughters who are now in their 20s.  I am told that you were subjected to violence during that relationship, and that your husband or partner then left you after about 20 years together.  I am told that you became very depressed at that stage, and that your psychiatric condition became so serious that you were put in hospital for psychiatric treatment in Vietnam. You have told some doctors here that you spent about a year hospitalised for that condition in Vietnam, although there is no confirmation or documentation of this.  You told Dr Walton that you continued to take medication for your mental health, but there are no details of that.

19You came to Australia in 2014 with your younger daughter.  Both of you had been sponsored by your older daughter, who had married an Australian. 
You are now a permanent resident of Australia.  Your older daughter has been in court for each of the hearings of your case, but your younger daughter has not.

20Since arriving in Australia, I am told that you have worked a little, doing domestic work or minding a disabled person.  Your options for employment here have been limited as you not only have no formal qualifications for any occupation, but you also speak very little English.  I am told that you cannot read or write in English or Vietnamese.

21At the time of this offending, you were living with your younger daughter, who was working, and she was only coming home to sleep.  I have been provided with very little other information about your living circumstances, or how you spent your days, or what really led you to be living in the crop house in Melton West.  The extent of your involvement with the man you describe as having set up the crop, and having asked for your assistance, is unclear, as you have given different versions of that.

22There is no evidence about your health before you became involved with this cannabis crop, particularly your mental health, apart from you telling Dr Walton that you were taking some medication.  Dr Walton assumed that was psychotropic medication, but he did not know the precise type.  Your lawyer told me that he had made enquiries and found no record of you receiving any medical treatment in Victoria, so it is very unclear who was prescribing any medication for you. Neither of your daughters seems to have provided any such information.  Neither of your daughters gave evidence or provided a letter to the court about any aspect of your life.  As I have already said, your older daughter has been in court during each hearing, and I am told that you will be able to live with her and her husband when you are released from prison.

23What has occurred since your arrest has been put before me in some more detail.  You were remanded in custody on 13 December last year.  Within days, your mental health had reached a state that you had apparently attempted to take your life, and that to led to you being moved into the Marrmak Unit, which is the psychiatric unit at Dame Phyllis Frost Centre. An attempt in late February of this year to return you to the general prison population, amongst other Vietnamese prisoners, lasted only about three days.  That was because you stopped taking your medication.  Over the following weeks, a number of abnormal behaviours were observed, including you were apparently hearing voices, and also you attempted to take your own life on more than one occasion. A diagnosis was made that you are suffering depression with psychotic features.  In May 2018, a secure treatment order was made by the Mental Health Tribunal.  You had been prescribed anti-depressant and anti-psychotic medication, but were not taking it. There was some suspicion that you might be cognitively impaired, possibly from a traumatic brain injury or past suicide attempts.  Unfortunately, no neuropsychological assessment has apparently been performed, although recommended. 

24It was noted in a report of 11 May that although both of your daughters had been visiting you, they had not expressed views about your conditions other than to support your wishes.

25You were transferred to Thomas Embling Hospital, where your medication was continued, and although you told Dr Walton when he interviewed you there on 6 July that you were not finding the medication helpful, I infer that you were subsequently stabilised as you were referred back to the Marrmak unit on
27 July.

26I infer from the fact that you were returned to the Marrmak unit, and as far as I have been informed, have been kept there, that experienced mental health practitioners have considered that you need ongoing mental health treatment or supervision.

27Your solicitors arranged to have you assessed while at Thomas Embling by
Dr Lester Walton, who is an experienced consultant psychiatrist.  He provided a report and gave oral evidence before me.  Some of the facts about your background circumstances that he was told were different from what was recorded by a psychiatric nurse, who had provided a report in March 2018, and by doctors at the Marrmak unit in a report for the Mental Health Tribunal in May 2018.

28INTERPRETER:  Sorry.  Could you say the name again, Your Honour?

29HER HONOUR:  Yes, sorry.  The doctors at the Marrmak unit had provided a report for the Mental Health Tribunal in May 2018.  Despite those differences in some background facts, Dr Walton thought he could reach an opinion to the extent that he expressed it.  He also pointed out that he did not know your previous medication or what you were taking at the time he saw you.

30Dr Walton found that you were clinically depressed, and that you seem to have hallucinations in the form of hearing voices.  He diagnosed that your condition was depressive psychosis.  He said that not only did you have much lowered mood with some suicidal intensity, but what he called "parallel hallucinatory phenomena" - meaning hallucinations, or hearing voices, and that those had depressive themes.

31He was not convinced that you are actually intellectually disabled, although no formal assessment had been made.  He noted that you have a very low level of education, and he believed your intelligence was not at a high level.  He described you having a chronic major psychiatric disorder, and gave as his opinion that that condition was likely to have made at least some contribution to you engaging in this offending. He said that your condition was likely to have made you vulnerable or less robust to being persuaded to do things that you may not have fully appreciated as being wrong.  Alternatively, it was because it made you less likely to give proper consideration to the consequences of your actions.

32Dr Walton saw you when you were still in Thomas Embling Hospital, and although you were not totally isolated there, because there was some access to a Vietnamese interpreter three days a week, and there was also a Vietnamese-speaking nurse working there, he noted that there were practical difficulties with managing your treatment and he thought that the medications needed to be revised.  When he gave evidence in court, it was some six weeks after he had last seen you.

33Is Ms Ly all right at the moment?  She is looking distressed.  Does she need a break?  She needs tissues.

34OFFENDER:  (Through interpreter) I can go on.

35HER HONOUR:  You can go on?  All right.  I know it is very detailed, what
I have to say, and very formal language, but I have to express it according to the law.

36When Dr Walton gave evidence in court, it was some six weeks after he had last seen you, and he had been given no further information about your condition in the meantime.  This was because of a decision taken by your lawyers, even though documents had been obtained through a subpoena from the Marrmak unit and made available to your lawyers but not to anyone else. Dr Walton assumed that you were receiving appropriate medication at the Marrmak unit, under the supervision of psychiatrists.  His opinion was that “without doubt” your serving of time in prison would be onerous - that is, more difficult for you - and he noted that it had already required your removal from the prison to Thomas Embling for psychiatric treatment.

37I have taken Dr Walton's opinions into account.  However, I am concerned that your lawyer, Mr Hooper, took the decision to not reveal to Dr Walton any of the records from the Marrmak unit which were provided under subpoena.  I infer that those documents would have provided Dr Walton with some further information to at least update your condition since he saw you, more than a month before those documents were produced.  In the end, Dr Walton could not say much more about his assessment of your condition when he appeared in court than he had in his written report.

38What was of even more concern was that when I read this week the very recent pre-sentence assessment from a CCO officer, it was reported that your condition may have substantially improved since Dr Walton examined you. 
I am not concerned that you may have improved.  Indeed, I hope you have.  But enquiries reported in this report seem to indicate that you were no longer prescribed medication.  I made that enquiry this morning in court, and through your lawyer (and the interpreter), you have said that you are still being given medication daily in the Marrmak unit.

39Indeed, it was said in this CCO that your presentation last Friday afternoon was positive with “nil concerns identified”.  My concern is that that is in considerable contrast to what was described as your condition by Dr Walton, and it leads me to believe that the overall information I have been given about your condition may not be entirely reliable.  I am not confident that I can give full weight to
Dr Walton's opinions.

40Despite these reservations, I have the objective evidence that you were assessed as needing to be held in the Marrmak unit from shortly after arriving at Dame Phyllis Frost Centre, and further, that you were assessed as requiring admission to Thomas Embling Hospital and kept there for about two months. Knowing, as all judges do, the very high call on the limited beds at that hospital, I can safely find that you have been assessed by mental health professionals who are experienced in assessing prisoners’ mental health, and that they have regarded you as very seriously unwell from a psychiatric viewpoint for at least the time you were at Thomas Embling, and at least requiring ongoing psychiatric supervision while at the prison in the Marrmak unit.

41Dr Walton was prepared to express the opinion, from what he found to be your psychiatric condition when he examined you, that it was likely to have been chronic and it was likely to have been impacting on your ability to make decisions when you became involved in this offending. As I have said, there is no direct evidence about the state of your mental health state at that time,  indeed, no evidence that you were seeing a doctor or that you were prescribed medication, and no descriptions of your moods or your behaviour by your daughters.

42On the balance of probabilities, I find that you did have a longstanding psychological condition as well as very low education and probably low intelligence.  I accept on the balance of probabilities that these circumstances  are likely to have made you more vulnerable or susceptible to persuasion - by whom, I cannot determine - to agree to participate in actions about which you probably did not understand the seriousness or full consequences.

43I am satisfied that for this reason, your moral culpability should be regarded as somewhat lower than it would be for someone without your chronic mental health disorder and with higher intelligence.  However, I still sentence you on the basis that you did know that what you were doing was wrong, and your reason for doing so was financial gain.

44I do not regard what lawyers call "specific deterrence" as of much importance in your sentence, because you have no prior criminal history, and after your experience in prison over the last nine months, I find it unlikely that you would become involved in this type of offending again.

45As I have already said, what lawyers call "general deterrence" is an important sentencing purpose in this case, but I have moderated - that means, reduced a little - the sentence to take into account that it is being imposed on someone whose psychiatric condition since being in custody has been unusually severe.

46Apart from reducing your moral culpability a little and making your circumstances significantly different from most for the application of general deterrence, I have taken into account your psychiatric condition in two other ways. First, I am satisfied that the fact of imprisonment made your psychiatric condition worse, or exacerbated it, from very soon after you were taken to the prison and secondly that it has made your experience of being in prison more difficult than for a person without that condition.  That is because you have not been able to serve your time in custody in the general prison population, where you would have been able to undertake various activities and programs.  You have spent it instead in the much more difficult environments of the Marrmak Unit and Thomas Embling Hospital.  These circumstances require some moderation of your sentence, and I have adjusted it accordingly.

47In order to consider what is called current sentencing practice for this type of offence, I have reviewed the latest Sentencing Snapshots which was issued at the end of August of this year.  For the years from mid-2012 to mid-2017, overall, 83 per cent of people charged with cultivating a commercial quantity of a narcotic plant received a sentence of imprisonment.  The average sentence on this charge, in the most recent year before you were arrested, was two years and two months.  The most common non-parole period over the last five years was between one to two years' imprisonment.

48However, statistics such as these to be taken into account for current sentencing practice are to be only one consideration in deciding a sentence, and do not set the limits of the top or the bottom of the possible range.[1]  Further, these figures, in my view, are of quite limited use when applied to a case with features of yours, as they do not differentiate as to whether there was a plea of guilty and do not provide details of the individual offender's circumstances.  They are unlikely to have been applied to a person with your particular psychiatric disorder, or the deterioration you have experienced in your disorder in custody.

[1]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.

49The prosecution submission is that a term of imprisonment is required. 

50Your lawyer conceded on your behalf that a sentence of imprisonment is necessary for the seriousness of the offending, but he urged me to structure the sentence so that it combined some imprisonment, necessarily no more than 12 months, with a Community Correction Order on your release to assist with your treatment and rehabilitation.

51The prosecution opposed that form of sentence.  The prosecutor pointed out that amendments to the Sentencing Act, specifically s.5(2H), mean that because of the category of this offence, the court must impose a term of imprisonment which is not in combination with a Community Corrections Order unless you fall within one of the exceptions. The relevant one here relates to impaired mental functioning. You must prove on the balance of probabilities either that at the time of the commission of the offence, you had impaired mental functioning that was causally connected to committing the offence, and which substantially reduces your culpability, or that you have impaired mental functioning that would result in your being subject to significantly more than the ordinary burden or risks of imprisonment.

52INTERPRETER:  Sorry, Your Honour.  Could you repeat that?

53HER HONOUR:  Yes.  I will break that up.  The alternative basis would be if you have impaired mental functioning that would result in your being subject to significantly more than the ordinary burden or risks of imprisonment. 

54I have already said that I find on the balance of probabilities that your psychiatric disorder is likely to have contributed to some reduction of your culpability.  But I do not find that to have been to a substantial degree. However, I am satisfied that the second part of the exception applies, in that you have been subject to significantly more than the ordinary burden or risks of imprisonment, and that that is as a result of your impaired mental functioning.

55Therefore, I find that one of the exceptions is established, and it is open to me to impose a sentence of combined imprisonment and a CCO.

56Last Friday, I raised with both counsel your immigration status. It seems that s.201 of the Migration Act could have impact on your situation as a permanent resident of Australia, but I am not permitted to speculate on what decisions might be made in relation to you under those provisions.

57The nature of this offending - that is, assisting in the cultivation of a commercial quantity of cannabis for financial gain, even if not the organiser of the crop - requires a sentence that sufficiently discourages other people from engaging in such conduct.  It also requires denunciation and just punishment.

58I am satisfied that no sentence other than some period of imprisonment would adequately achieve those purposes.  In deciding how long, I have certainly taken into account that you have been suffering while in custody from unusually serious mental health symptoms, and it seems those would be likely to continue however long you stay in custody.

59In all of the circumstances, I have decided that all sentencing purposes can be achieved by imposing a sentence that requires not much longer to be spent in prison than you have already served, to be followed on your release from prison by a Community Correction Order under which treatment and rehabilitation of you in the community can be addressed, but also providing for ongoing supervision of you.

60Would you stand up now, please.

61Hong Ly, on the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to ten months' imprisonment to be followed by a Community Correction Order to last for 12 months.

62I declare 287 days of pre-sentence detention as reckoned served, and I direct that that be entered in court records.  That means, almost nine-and-a-half months which you have already been in custody will be counted as part of this sentence, and you will be released from prison in a little over two more weeks.

63I need now to tell you more about the Community Correction Order. It will start when you are released from prison and run for 12 months from then. 
The conditions that I impose are supervision. Also, that you attend for assessment and treatment, if directed, for your mental health conditions.  Also, that you attend for assessment, and if directed to, any program recommended by community corrections officers to help reduce your risk of reoffending.

64Also, all usual terms apply.  That is, usual terms of a community correction order.  I expect that they were explained to you last Friday, but no-one signed the form so I will just mention each of them briefly now.

65First, within two working days after your release from prison, you need to report to the nearest community corrections office to where you are living. 
The address of that office will be confirmed shortly.  While you are on the Community Correction Order - that is, for 12 months - if you change address of where you are living, you need to notify community corrections officer within two working days. If you obtain work, you need to tell them the address of where you are working within two working days of when you find out about that address.  You must obey all lawful instructions or directions of community corrections officers.  You must attend for meetings when they direct you.  You must not leave the state of Victoria without their permission, and most importantly, you must not commit any other offences.

66It would be a breach of this order if you committed any other crime that could be punished by imprisonment.  You had no prior criminal history before being arrested for this cannabis crop, but I have to make clear that any other offending to do with drugs, or, for example, stealing some food from a shop - those would all be offences which would breach this order.

67Ms Ly, I have to ask, do you understand the conditions and terms of the order?

68OFFENDER:  Yes, Your Honour. 

69HER HONOUR:  Do you agree to comply with it?

70OFFENDER:  Yes, Your Honour. 

71HER HONOUR:  All right.  I have to tell you that if you do not obey it, this order, if you do not attend as you are directed, or if you were to commit any other offence, then that would breach the order and it may well be that you are brought back to court in front of me.  I would have to take into account what had occurred and why and how much of the order you had obeyed, but it is possible that you would be re-sentenced for the offence of cultivating a commercial quantity of cannabis.  It is also a separate offence, a separate crime, to breach a community correction order, and for that you could receive a sentence of up to 3 months in prison.

72To obey the community correction order - sorry, when I said "obey", it might refer to when the community correction officers direct you to go to a meeting with them or direct you to go to a doctor for an assessment, or to be assessed for a program.  Ms Ly, I think you will try hard to obey this order, but I need to tell you that if you do not, you will be back in court in front of me.  Do you understand that?

73OFFENDER:  Yes, I do.

74HER HONOUR:  All right.  I also need to state what your sentence would have been if you had not pleaded guilty.  If you had been found guilty of this charge after a trial and all the other circumstances had been the same, including your psychiatric illness in custody, I would have sentenced you to 30 months' imprisonment with a non-parole period of 18 months.

75The prosecution applied for a disposal order and that was not opposed, and
I make that order. 

76The prosecution also applied for a forensic sample order and that was not opposed.  That means that a sample will be taken by a swab being held inside your mouth, and that will allow your DNA to be tested and recorded on the national database.  I find that the circumstances of the offending warrants that order being made, and also, it was not opposed.  I limit the order to a scraping from the mouth and not a blood sample. I warn you, as I must, that if you do not let officers take it from you, if you resist, then authorised officers can use reasonable force to take that sample. 
I am limiting it to - they call it "scraping" from inside your mouth.  But it is like some cotton at the end of a stick, and it does not hurt, and it is not very intrusive unless you try to resist.  So unless you resist, no force should be needed.

77All right.  If you take a seat now, some orders have to be prepared and I have to check that I have covered the matters I needed to.  Sorry, Ms Jago, you looked surprised about the disposal order.  Is that not needed anymore?

78MS JAGO:  No.  It is not needed anymore, Your Honour.

79HER HONOUR:  It is not needed anymore?

80MS JAGO:  No. 

81HER HONOUR:  All right.  That had been put to me some weeks ago.  I will sign, as I have said, limited to a scraping from the mouth, the s.464ZF order. 

82I know that I have used a lot of technical language, but what with the medical information and the sentencing requirements, I thought it was needed - this will be revised - I will footnote the case law to which I was referring.  I did not want to start citing cases, and I will footnote the exact section numbers where
I indicated.

83Can I just confirm:  I added five days to what was to be the pre-sentence detention last Friday.  Have both sides checked that 287 days is correct?

84COUNSEL:  Yes, Your Honour. 

85HER HONOUR:  All right.  Have I overlooked anything else?

86COUNSEL:  No, Your Honour. 

87HER HONOUR:  I do not think I need a custody note because Ms Ly's been in custody.  Indeed, there is a lot of recorded information from there.

88MR HOOPER:  Yes, Your Honour. 

89HER HONOUR:  All right.  I will have a look at the orders.  Thank you.  A copy of the Community Correction Order will be shown to both counsel here, and if - once checked, if appropriate, it will be taken by my Associate to Ms Ly and I will then ask the interpreter to read it through with her.

90Thank you.  I will sign that Community Corrections Order, and there will be a copy for you, Ms Ly, and your lawyer will have a copy and the prosecution also, obviously.

91It has just occurred to me - I have signed the order for the forensic sample, but it has just occurred to me that this case now lies a little between the different forms. Normally, I think all the orders say "wait four weeks", and that means she will be out of custody by then and it should be the form that is done to attend at a police station.  What I am going to suggest is that - that is not the form I have just signed. It is hard enough to explain it at the best of times:  wait four weeks, and then you have got four weeks to go to the police station, and then she will not have - by the time the four weeks are up, there will be time.  I did not notice.  Is it established what the nearest CCO office was to report to? 

92MR HOOPER:  Melton, Your Honour.

93HER HONOUR:  Melton?

94MR HOOPER:  Yes.

95HER HONOUR:  That is near where her daughter lives, is it?

96MR HOOPER:  Yes, Your Honour. 

97HER HONOUR:  All right.  She will no doubt be reminded of that when she is released from prison.  I will leave the signing of the forensic order until I am back in chambers, and it will be emailed to both sides.  I think it does not take effect for four weeks, so - when I say it does not take effect, the sample will not be taken.  There has to be a waiting four weeks because of an appeal period, and by then, Ms Ly will be out of custody and go to a police station to have it done.

98All right.  Ms Ly, I hope I do not see you again.  That will mean that there
is nothing further wrong.

99INTERPRETER:  She said, "Thank you, thank you."

100HER HONOUR:  All right.  I trust you will stay away from the temptation of earning easy money again.  Does her daughter want to speak to her while here?  Does she want her kept in the court room for a few minutes, or just will I have her taken from the court room?  Have you made the enquiry with her daughter?

101MR HOOPER:  Perhaps if I could just briefly, Your Honour?  Yes, Your Honour.  If she could remain briefly?  Thank you. 

102HER HONOUR:  Yes, all right.  I do not think the interpreter will be needed. 
I am assuming she will not be.  If Ms Ly can just be kept here for two or three more minutes to let her daughter briefly speak with her?  There should not be physical contact, because she is in custody.

103All right.  We will adjourn to - just wait, Ms Ly.  I am going to leave, and then you can talk for a few minutes. 

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