Director of Public Prosecutions v Thi (a pseudonym)
[2023] VCC 910
•8 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAN THI (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2023 | |
DATE OF SENTENCE: | 8 March 2023 | |
CASE MAY BE CITED AS: | DPP v Thi (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 910 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of possession of a drug of dependence, namely Cannabis L, in circumstances where husband of the offender had cultivated a commercial quantity of cannabis and stolen a quantity of electricity in the offenders’ home – offender, Thi, had care of 9 children, one of who has a significant behavioural problems and disability – family in financial distress during the Covid pandemic and offender turned “a blind eye” to husband’s cultivation activity – Thi had spent 132 days in custody before being granted bail – taking latter into account along with lack of convictions and remorseful plea of guilty, offender convicted and placed on an adjourned undertaking to be of good behaviour for a period of two years.
Legislation Cited:
Cases Cited:
Sentence: An adjourned undertaking to be of good behaviour for a period of two years.
s6AAA: Total effective sentence eighteen months’ imprisonment with a non-parole period of nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Norris | Solicitor for Public Prosecutions |
| For the Accused | Mr K Reynolds | James Dowsley and Associates |
HER HONOUR:
1Yan Thi[1], you have pleaded guilty to one charge of possession of a drug of dependence, namely Cannabis L. The maximum penalty for this offence is 400 penalty units or five years’ imprisonment or both.
[1]A pseudonym.
2On 29 October 2021, when the offence was committed, you were aged 49 years and were married to Duong Dat[2]. You were living at a home in Keysborough with the nine children of your marriage. Your husband, Mr Dat, has pleaded guilty to two charges committed on that same date, namely cultivation of a commercial quantity of cannabis and, also, theft of a quantity of electricity. The subject of the charges against both of you relates to a total of 171 cannabis plants which were growing in four rooms within the garage at your home and which had a total weight of 19.918 kilograms. It was a sophisticated hydroponic setup which was being used to cultivate cannabis plants of various sizes and maturity.
[2]A pseudonym.
3The prosecution opening[3], which contains the agreed statement of facts, notes that when your husband, Mr Dat, was interviewed, he admitted to setting up the cannabis crop and cultivating it, and also to having arranged for someone to install an electrical bypass. He has a prior criminal history which includes a conviction in 2012 for cultivating cannabis and trafficking in tetrahydrocannabinol.
[3]Exhibit A
4The charge of possession to which you have pleaded guilty is based on the fact that you were living at the house and seem to have turned a blind eye to the cultivation activities. There is no suggestion that you were aware that it was a commercial quantity. Hence, the charge is one of possession of a drug of dependence simpliciter.
5When arrested and interviewed by police on 29 October 2021, you stated that you knew what had occurred was wrong, but it was done to pay the rent and bills. You noted that your husband and some of your children have disabilities and that you need to stay at home to care for the children. You stated that you never buy anything for yourself, and that you spend all money on the children and running the household. You expressed concern about how the children and your husband would be looked after if you were not there.
6Following your arrest, you spent 132 days in custody before being granted bail on 10 March 2022. You had initially been charged with the more serious offences to which your husband had pleaded guilty. After a committal hearing, the more substantial charges against you were withdrawn, and, on 17 October 2022, you pleaded guilty to the possession charge.
7You are presently aged 49 years, having been born in June 1973 in Cambodia. In the plea on your behalf by Mr Reynolds, the Court was told that your family migrated from Cambodia to Vietnam when you were one or two years of age due to the unsafe conditions in Cambodia at that time. Ultimately, you and your family migrated to Australia in 1986 under the sponsorship of an uncle who had already settled here. You were aged 13 years and had a poor grasp of the English language, but studied English for two years at an English learning centre in Noble Park. You then managed to complete Year 10 at a local high school.
8You married Mr Dat in 1992, and gave birth to the first of your nine children, Amy[4], in November 1992 when you were aged only 19 years. Subsequently:
· your second child, Reggie[5], was born in April 1994,
· your third child, Aidan[6], was born in February 1995,
· your fourth child, Lisa[7], was born in September 1996,
· your fifth child, Daniel[8], was born in July 1999,
· your sixth child, Corrine[9], was born in June 2000,
· your seventh child, Adam[10], was born in August 2001,
· your eighth child, Charlie[11], was born in January 2006, and
· your ninth child, Bobby[12], was born in August 2009.
[4]A pseudonym.
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
[8]A pseudonym.
[9]A pseudonym.
[10]A pseudonym.
[11]A pseudonym.
[12]A pseudonym.
9The Court was told that, at the time of offending, things were financially difficult for the family. Your husband, Mr Dat, had been involved in a motor vehicle accident in 1995. Apparently, this involved some form of brain injury with consequent impairments. After receiving weekly payments of compensation from the Transport Accident Commission for a period, he was ultimately placed on a Disability Support Pension in or about 2002. He has never returned to his pre-injury employment. Further, your youngest child, Bobby, who is presently aged 13 years, has a number of long-term challenging problems which have required the care of a specialist paediatrician. He was diagnosed with Attention Deficit Hyperactivity Disorder and an Intellectual Disability when in primary school and, more recently, has been diagnosed with Autism Spectrum Disorder. On your behalf, it was submitted that at the time of this offending the family was undergoing a period of greater-than-usual financial stress, related to the restrictions occasioned by the COVID‑19 pandemic. At the time of the offending your husband was in receipt of his Disability Support Pension of approximately $700 per fortnight, and you were receiving a carer’s benefit of some $650 to $700 per fortnight as the registered carer for your husband. Also, you were receiving family benefits of $550 per fortnight relating to those of your dependent children who were then under the age of 18 years.
10All nine of your children were living at home at the time of the offending. However, the only two of them who had had paid employment suffered a downturn or cessation of their earnings heading up to and during the period of offending.
11Your oldest daughter, Amy, had work as a contractor providing advertising signage for real estate agents, for which she would earn approximately $900 net per week. However, from March 2020, due to the inability to open homes for inspection because of the restrictions imposed during the pandemic, she received less and less work. Ultimately, she received no income for the entirety of 2021, except for the JobKeeper benefit, which was approximately $700 per week. Amy used to contribute her earnings to the family coffers to help support the family, but at the time of offending had a reduced capacity to do this.
12Another daughter, Corrinne, had casual employment as a packer at a factory, for which she earned about $700 net per week. She too, used to continue her earnings to help the family, however, at some stage in 2020 that work ceased to be available to her. She was not entitled to a JobKeeper allowance. Hence, her contributions to the family income came to an end.
13The only other adult children at the time of the offending were Adam, aged 19, who was studying to become a personal trainer, and Daniel, who was aged 21 years, who was neither studying nor employed.
14Although the Prosecution Opening refers to an obligation of you and your husband to pay $2,800 per month by way of rental, your counsel stated that this was, in fact, a mortgage repayment on the family home, which is apparently in the name of your eldest daughter, Amy.
15Tendered at the plea hearing on your behalf was a letter from Dr Liz Shu[13] from Wellness Superclinic dated 6 December 2021.[14] This document was produced and apparently relied upon in support of your bail application, which was granted on 10 March 2022. Dr Shu certifies that Bobby has ADHD, an intellectual disability, very delayed speech, and emotional instability. She states that he requires the full-time care of you on a daily basis, has no full awareness of safety for his age, and requires constant supervision. She noted that, once you had been away in custody, Bobby missed you tremendously, did not sleep well at night, reduced his food intake, and his emotional state became more unstable, in that he would cry more regularly than previously.
[13]A pseudonym.
[14]Exhibit D2-1
16Also tendered at the plea hearing was a letter from Dr Amir Sethu[15] from Keys Health Service, together with an accompanying GP Mental Health Treatment Plan – Review.[16] The letter is a referral to Headspace of Bobby, then aged 12 years 6 months, for opinion and management of a mood disorder. It noted that there was a situational crisis, in that Bobby’s ADHD treatment had failed, and he was to return to the paediatrician for review the following week. It also noted poor social skills a learning disability and confused emotions. Bobby was noted to be teary and angry in consultations during which he had that he was having outbursts of different emotions. He reported feeling scared at night because he was thinking of creepy stories. It was noted that, while both of his parents were in gaol, his sister was caring for him but he had engaged in self-harming behaviour, banging himself on walls, and grandparents were relied upon to help with finances for the nine siblings who lived at home.
[15]A pseudonym.
[16]Exhibit D2-2
17Two brief letters from Dr Dzung Le, consultant paediatrician, dated 10 November 2022, addressed respectively to Keysborough College and “To whom this may concern”, relating to Bobby, were also tendered at the plea hearing.[17] In the first letter, Dr Le noted that Bobby had been given Ritalin, 10 milligrams, to treat symptoms of ADHD and improve his concentration and attention, and it would be necessary for him to try half a tablet or 5 milligrams at school around 12 noon but, if he did not improve, the dose should be increased to one tablet, in addition to the family giving him dosages at 8am and 4pm. In the second letter, Dr Le noted the diagnoses of Attention Deficit Hyperactivity Disorder, severe language disorder, severe learning difficulties worsened by the impact of home schooling and no support at home and a borderline Intellectual Disability with a full-scale IQ of 72. Dr Le reported that assessments for Autism Spectrum Disorder were pending at that stage. She stated that he was functioning very poorly in the intellectual disability range, with a Vineland score of 48, which was a huge gap compared to his actual intellectual ability. She also noted that Bobby required a lot of additional support with self-regulation and psychological support, as his mood had been low due to his mother’s absence and bullying and teasing at school due to his social awkwardness. She also recorded that his sister had reported that he had had lots of negative thoughts which he talked to her about at night. She noted that Bobby was currently accessing the NDIS to address his neurodevelopmental issues.
[17]Exhibit D2-3
18At the plea hearing on 20 February 2022, evidence was given by your eldest daughter, Amy Dat. She is 30 years old, and impressed me as a very mature and caring sibling and daughter. She expanded upon Bobby’s needs, noting that, when he was in Year 5 he had been diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed medication for it. However, as he was showing signs of depression and crying a great deal, this was stopped for a while, until the teacher requested that it be reinstated because Bobby would run out of the classroom, apparently often needing to speak to the school nurse.
19She noted that, in primary school, Bobby had been given an integration aide who followed him around and helped him, but he did not have a dedicated aide of his own at secondary school. Bobby’s paediatrician, Dr Le, had assessed him, now in Year 8, as being at approximately Year 3 level for literacy and numeracy. Amy stated that he struggled with his homework unless she or someone else sat down with him. She described him as constantly moving and fidgeting, and noted that, during lockdown with remote learning during his Year 6 education, he was “just mucking around”, and the integration aide was not physically present, so could not control him. She described how he would just run up and down his room, and his learning regressed. I here interpolate that an assessment from “Mark Solutions” (tendered following the conclusion of the plea hearing) an assessing service for students with disabilities, dated 7 June 2023, confirmed the significant challenging behaviour experienced by Bobby at this time.[18]
[18]Exhibit D2-6
20Amy, left me in no doubt about the labour-intensive nature of Bobby’s care needs. She stated that his speech is hard to understand. She is able to manage because she is used to him. Teachers and fellow students have trouble. He needs someone to wake him up and to remind him to have a shower, although last year managed to learn to actually shower himself. However, he needs to have his clothes laid out for him and is unable to dress himself. He struggles with tight clothing and is unable to tie his own shoelaces. He is able to eat independently, but not capable of preparing any food for himself.
21She confirmed that, whilst you were in custody, Bobby was very sad, and suffered an increased incidence of emotional outbursts, asking when you would be coming home. Amy became visibly upset about the difficulty that this occasioned.
22Amy stated that Bobby does not really have any friends, and people tend to bully and tease him and, at school, he usually just “hangs out” with the teachers. She mentioned that after a long delay, finally there was a meeting scheduled with Dr Le, the paediatrician, to review Bobby’s needs on 26 February 2023 since he was diagnosed last year by a specialist in autism, Dr Helen Chau, with Autism Spectrum Disorder. She stated that, at the moment, Bobby needs to take Ritalin for ADHD, as well as melatonin to help him sleep, and another medication which she was unable to recall.
23Amy confirmed that Bobby needs to be driven to and from school, and that you do not have a driver’s licence, so her grandmother, who lives five minutes away, helps with the transport of Bobby when she, herself, is unable to do it. She stated that, although he is able to toilet himself, he is sometimes too slow and has accidents. Also, he tends to bang his head on the wall or hit pillows very hard against the wall. This was particularly bad whilst you were in custody, but is somewhat better now.
24Amy stated that the school is devising a special timetable for Bobby so that he returns home at lunchtime, because he is too tired to manage a whole day, but, unfortunately, he’s IQ is one or two points above the cut-off point for qualifying for entry into a special school. She confirmed that she helps him as much as possible with his reading, writing and arithmetic, while you focus on cooking and cleaning. She also confirmed that there is an application for Bobby which has been made to the National Disability Insurance Scheme to have provision made for him to undergo speech therapy, occupational therapy, and regular treatment with a psychologist. This was confirmed by a copy of Bobby’s NDIS Plan for the period of 6 November 2021 to 6 November 2023 which was filed after the conclusion of the plea hearing, and which has been marked as an exhibit.[19]
[19]Exhibit D2-5
25Subsequent to the conclusion of the plea hearing, a more up-to-date report from Dr Le to Dr Shu dated 13 February 2023 was tendered.[20] This confirms that Bobby is continuing to experience ongoing significant difficulties including trials for different medications for his ADHD symptoms. She also confirmed significant difficulties, had been formally diagnosed with Autism Spectrum Disorder, Level 2 Dr Le commented that Bobby would require substantial support through the National Disability Insurance Scheme in a variety of ways and that a Support Coordinator was needed to take the pressure off Amy, who seemed to be the main carer.
[20]Exhibit D2-4
26Ms Thi, you should be in no doubt as to the seriousness of conduct which involves possession of illicit drugs, which do so much harm in our community. You are not to be punished for the cultivation of a commercial quantity or the theft of electricity as your husband is. However, it is a terrible example to your many children to turn a blind eye to this illegal activity taking place in the garage of the home where those children live. Our society would be in a chaotic state if every family who was experiencing financial hardship took to illicit drug activity. Having said that, there is no suggestion that you knew that a commercial quantity was involved, and your counsel suggested and I accept that there probably was a degree of cultural submission to your husband. I accept that you were under great pressure, with reduced financial resources to care for your large family, especially for Bobby who has such a range of considerable challenges such that the care for him is no doubt relentless and exhausting.
27It is to your credit that you pleaded guilty to the offence. I accept that your plea is remorseful, particularly given that you acknowledged the wrongfulness of what you permitted to occur when interviewed by police. You are entitled to a discount on your sentence because you pleaded guilty. I accept that your plea has utilitarian value, which is somewhat enhanced in that, even as late as 17 October 2022, when your plea was entered, the heavy lists for this Court were very congested with the backlog of criminal trials occasioned by the pandemic restrictions. By pleading guilty you made space available for another trial to be accommodated. In addition, I accept that you are ashamed of what occurred. Your remorse entitles you to an even higher discount on the sentence to be imposed.
28You are of prior good character, and I have no doubt that it would have been very confronting for you being in custody for the first time, for 132 days from the date that you were arrested on 29 October 2021 until the date that you were given bail on 10 March 2022. I accept that you would have been very concerned about how your family was faring while you were in custody, particularly, Bobby, who has so many special needs.
29In addition, this was a period when the pandemic restrictions made it necessary still for prisoners to undergo a period of isolation upon first entering the prison system, and, from time to time during the period that you were in custody, there were still some restrictions relating to the number of out-of-cell hours permitted, the number of rehabilitative programs available, and the availability to contact visits to prisoners from family and friends. These factors made your time in custody more onerous, and I take them into account in sentencing you.
30The charge of possession in these circumstances is serious. The Court must denounce your conduct and send a message to others that, if they tolerate the cultivation of cannabis and the theft of electricity, as you did, then they will be appropriately punished by courts. This is what is called an emphasis upon general deterrence. However, the punishment which I impose must be a just one, taking into account all the circumstances, including those in mitigation of your wrongdoing.
31Having taken into account that you did spend 132 days in custody, along with all the other mitigatory factors to which I have referred in your favour, I agree with the prosecutor and your counsel that this is one of those rare cases where justice can be appropriately served by the imposition of a conviction, together with an adjourned undertaking to be of good behaviour for a period of time, which I set at two years.
32Ms Thi, you need to understand that I can only make such an order if you are prepared to enter into an undertaking to be of good behaviour for that time. If, during the next two years, you were to commit another criminal offence, then you would have breached that undertaking and would be brought back before the Court for such breach.
33Are you prepared to enter into an undertaking to be of good behaviour for a period of two years, Ms Thi?
34OFFENDER: Yes, Your Honour.
35HER HONOUR: On one charge of possession of a drug of dependence, namely Cannabis L, you are convicted and sentenced to enter into an undertaking to be of good behaviour for a period of two years.
36Ms Thi, it will not be necessary for you to attend court in two years’ time unless you have breached that undertaking, in which event you will be given a notice to attend court.
37Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence would have been eighteen months’ imprisonment with a non-parole period of nine months.
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