IN THE COUNTY COURT OF VICTORIA	 Revised
Not Restricted
          Suitable for Publication	
AT Melbourne
CRIMINAL JURISDICTION
CR-21-01224

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MY CHI LY		

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JUDGE:	HIS HONOUR JUDGE CHETTLE 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17, 20, 21, 22, 24, 27 June 2022, 14 March 2023	
DATE OF SENTENCE:	18 May 2023	
CASE MAY BE CITED AS:	DPP v Ly	
MEDIUM NEUTRAL CITATION:	[2023] VCC 814		

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW SENTENCE
Catchwords: 	Sentencing – cultivation of narcotic plant, theft, trafficking in drug of dependence.
Legislation Cited:	6AAA Sentencing Act 1991.
Cases Cited:	Dalton v The Queen [2015] VSCA 189
Sentence:	With conviction, 24 months Community Correction Order; unpaid community work, treatment for drug and alcohol abuse and mental health, forfeiture and disposal order. 
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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr D. Hannan	Ms. O. Ventura, Office of Public Prosecutions. 	
			
For the Accused	Ms N. Kaddeche	Mr. N. Marcevski, Marcevski Lawyers. 	

HIS HONOUR:

1	My Thao Ly, you have pleaded guilty to one charge of cultivating a narcotic plant, one charge of theft of electricity, and two charges of trafficking in a drug of dependence.  The facts of your offending are set out in Exhibit A, the summary of prosecution opening, tendered upon your plea. 
2	I was advised by your counsel that I could treat that document as an agreed statement of fact and I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.  There is no need therefore for me to extensively deal with the facts. 
3	You were caught up in an operation run by a joint taskforce of state and federal police officers to look at a large-scale drug operation being run substantially by your ex-husband.  As part of that operation, you were detected on two occasions making telephone calls, or telephone calls were intercepted whereby you purchased - on the first occasion you offered to sell one ounce of heroin to a man called Do for the sum of $15,000 and on the second occasion you and Do purchased an ounce of heroin for $24,000 intended for sale and split that between you.  They represent the two counts of trafficking in heroin. 
4	On 21 September you were observed moving cannabis plants from your residence, and on 24 September police attended and located 16 cannabis plants weighing 7.9 kilograms and an electricity bypass. 
5	When you were interviewed in relation to this offending you admitted cultivating cannabis and admitted knowing that the electricity was being stolen, and admitted to trafficking on one occasion in heroin.  This plea comes about as a result of negotiation between the prosecution and your lawyers subsequent to you being charged initially with quite serious drug offences. 
6	I will make it clear I am sentencing you for what you have pleaded guilty to, not for what you were originally charged with, and had you been prosecuted for these matters initially you could have had these matters dealt with in the Magistrates' Court and not been in this court.  That I regard as significant. 
7	You have no prior criminal history, and you fall to be sentenced as a 34-year-old woman with two children, and I will turn to those in a moment.  Your personal history is set out in Exhibit 1, the sentencing submissions of your counsel Ms Kaddeche. 
8	You were born in Malaysia of Vietnamese extraction.  You moved to Australia in 1989 when you were about one year of age.  Your parents divorced in the year 2000 when you were about 12.  Your mother continued to work here whilst your father moved back to Vietnam where apparently he has re-partnered and has further children.  That childhood of yours - although your parents both worked hard it appears, from what you indicate, that your mother was the subject of domestic violence which you witnessed from time to time. 
9	You attended school to Year 12 level at Keilor Downs Secondary College and then studied for a diploma in hair and beauty at the Australian College of 
Hair and Beauty Design.  You then undertook experience as a hairdresser in Footscray, then studying hospitality at William Angliss Institute.  You worked in a restaurant for a period of five years as a manager and at the same time apparently married your co-accused Do when you were 21 years of age.  That restaurant did not go well and subsequently closed. 
10	Your marriage to Do was marked by drug addiction.  He apparently was an absent father and had issues with fidelity.  Significantly you have two children and you have been a single mother of those children for some years.  
Your daughter is 10 years old, and your son is six years old.  
Your son has some medical issues which are set out in Exhibit 2, the patient health summary from McKinley Super Clinic.  
11	I need not outline the number of issues he has but they require your assistance to deal with the issues that he faces.  Obviously incarcerating you would cause immense hardship to your children, but in particular to you if you are in gaol worrying about their wellbeing. 
12	I accept that your plea of guilty was entered at a relatively early stage given that you made admissions to trafficking to the police, and the hold up in this matter has been largely caused by the fact that you were originally charged with trafficking in commercial quantities rather than trafficking simpliciter, as you are now. 
13	Your plea of guilty demonstrates your remorse.  It has significant utilitarian value, especially given the effect COVID-19 has had upon our criminal justice system.  You are entitled to an increased reduction in sentence to recognise that value. 
14	You fall to be sentenced as someone with no prior convictions of any sort.  The character references tendered on your behalf attest to you being a loving mother, someone who has expressed regret for her involvement in these offences, and it would appear that you were, to some extent, led astray or influenced by your ex-husband.  Having said that, you were in fact still involved in drug dealing for some years after you and he parted ways. 
15	You now have a new partner, who is present in court today to support you.  He is a man in the army and he has described you as a loving mother of two and someone who has expressed her regret for her involvement in your offending. 
16	You are suffering from stress and anxiety as a result predominantly of being in the position that you are in.  The course I propose to take will see you gain some assistance in that regard. 
17	People who deal in drugs normally go to prison.  It is an insidious trade that causes much hardship to our community, and initially I was of the view that a term of imprisonment was, to some extent, and perhaps combined with a community corrections order, may be appropriate for you, but having heard the matters urged on your behalf by Ms Kaddeche, read the assessment from the community corrections officer who provided the report, and the material tendered in your support upon your plea, I have determined that I can give effect to the principles of general deterrence, denunciation and protection of the community by imposing a community corrections order. 
18	The Court of Appeal has made it clear that such an order is not a soft option.  
It involves both punitive and rehabilitative elements and is appropriate in cases where, in other circumstances, a medium term of imprisonment may be imposed.  I refer to paragraph 131 of The Queen v Dalton much quoted in this court. 
19	I have had regard to what happened to the other co-accused.  Principles of parity really have no application here.  Your offending was at the lower end of offending and, as I said, if it had been dealt with promptly it could have been dealt with in the Magistrates' Court. 
20	You can properly be described as a low-level wholesaler of illicit drugs.  The quantity of cannabis was a small amount but if that was all you were facing you would have no issue about potential imprisonment.  Your trafficking in heroin on two discrete occasions, however, is of concern to the court. 
21	Having said that, ultimately what makes my mind up is the position of your 
two children and I am going to give you an opportunity to continue to be a good mother to those children.  You need to understand that if you breach this order by further offending or by non-compliance you will be brought back before me and then any issue as to whether or not you are to be imprisoned will disappear.  Do you understand?  You have been found suitable for a community corrections order.  Are you prepared to undergo such an order? 
22	OFFENDER:  Yes, Your Honour. 
23	HIS HONOUR:  All right.  On all charges, the charge of cultivate cannabis, theft of electricity, and the two charges of trafficking in heroin, you will be released on a community corrections order for a term of two years.  It will be a requirement of that order that you perform 200 hours of unpaid community work, that you undergo treatment and rehabilitation for drugs, and treatment and rehabilitation for mental health.  I will order that  60 hours of any programs you may undergo can count against the unpaid community work that I have ordered you to perform. 
24	Pursuant to 6AAA of the Sentencing Act I indicate that but for your pleas of guilty to these offences I would have imposed a term of imprisonment of 
two years with a non-parole period of 12 months.  Are there forfeiture ‑ ‑ ‑ 
25	MR HANNAN:  Forfeiture and disposal. 
26	HIS HONOUR:  I make the forfeiture and disposal orders sought by the prosecution. 
27	MS KADDECHE:  Yes, Your Honour. 
28	HIS HONOUR:  All right.  That's it.  You can leave the dock.  Ms Kaddeche will impress upon you that I have given you an opportunity.  You don't want to come back again.  I adjourn now sine die.  Thank you. 
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