Director of Public Prosecutions v Chen

[2018] VCC 374

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02490

DIRECTOR OF PUBLIC PROSECUTIONS

v

WEI CHEN

---

JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2018
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Chen
MEDIUM NEUTRAL CITATION:	[2018] VCC 374

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Accused	Mr P. Smallwood	Office of Public Prosecutions
For the Office of Public Prosecutions	Ms M. Brown	Vale Criminal Law

HIS HONOUR:

1Wei Chen, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, contrary to s.72(A) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years' imprisonment.

2You pleaded guilty at committal mention and I have taken your early plea of guilty into account in your favour in mitigation of sentence.  It has facilitated the administration of justice and I accept that it is also evidence of remorse in your case.

3You have no prior convictions, subsequent convictions or outstanding charges.  A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

4On 14 August 2017 members of the Victoria Police Air Wing observed a hot section of power cables at premises in Boronia.  Investigations were carried out by police and on 6 September 2017 you were spoken to by police at the premises.  You refused them entry as they did not have a warrant.  Later that day you were apprehended by the police in your vehicle and following a search of it, 26 large plastic bags containing cannabis plants were located. 

5That evening a search warrant was executed at the premises in Boronia revealing a sophisticated hydronic system in four upstairs rooms at the property.  Fifty-eight cannabis plants were seized, weighing 80.07 kilograms.  The plants located in your vehicle weighed 1.19 kilograms.  By operation of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of cannabis is no less than 100 plants or 25 kilograms of that substance.

6A subsequent "yield certificate" reveals that approximately 15 kilograms of the cannabis would be useable, when dry.  The cannabis plants were in various stages of maturity and 42 of them were immature and between four to six weeks old.  Following the search you were interviewed by investigating police and stated you had resided at the premises for two months.  Having agreed to cultivate the plants in order to repay a gambling debt of $38,000 you owed to a "loan shark" you had met at the Crown Casino. You stated the plants in your car were rubbish that you had intended to dispose of. 

7The cultivation of a commercial quantity of cannabis is both a serious and probable offence.  The sentencing principles in relation to the offence are well settled and were recently set out by the Court of Appeal in Nam Nguyen v The Queen [2016] VSCA 198. Drugs of dependence cause immeasurable damage to our society and the sentence I impose must be calculated to deter others from offending in this manner.

8In my opinion your moral culpability of your offending is significant.  You offended for, in effect, profit and whilst it is not possible to identify the ambit of your involvement in the offending, it would appear over half of the plants were placed at the premises during your occupation of them and you also took steps to dispose of 26 plants following the attendance of the police.  You are also an intelligent and financially secure businessman who chose criminal activity to resolve a debt you had incurred.  Accordingly, you must also be punished for what you did. 

9I now turn to your personal circumstances.  You were born on 1 October 1968 in Shanghai, China and are now aged 49.  Following the student uprising in China in 1989 and subsequent government responses, you travelled to Australia in December 1989 on a student visa.  You had then completed three years of a four-year chemical engineering degree.  You have engaged in full-time employment in Australia and are now the proprietor of a café/delicatessen in New Street, Brighton.  You have been married twice and have two adult children.  It would appear gambling led to the breakdown of your marriages.  You are financially secure and own investment properties in Noble Park and Beaumaris.  It would appear you have no relevant physical or mental health complaints. 

10I accept that your prospects for rehabilitation are good and that specific deterrence is not a significant sentencing consideration in your case.  I also accept you are deeply ashamed for what you have done and when your family, including your elderly father in China, learn of your imprisonment that shame will no doubt be compounded.  You have made arrangements for your business to be managed during your incarceration. 

11I have moderated the non-parole period in your case in order to provide for your rehabilitation and supervision on parole and it is, in my opinion, essential that you continue to refrain from gambling and frequenting Crown Casino on your release from prison. 

12In the result the sentence of the court is as follows –

13On the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to two years' and six months' imprisonment. 

14I direct that you serve 12 months' imprisonment before becoming eligible for release on parole. 

15I declare you have served one day by way of pre-sentence detention, not including today. 

16But for your plea of guilty, I would have imposed a total effective term of imprisonment of three years' and six months' with a non-parole period of one year and nine months. 

17I have made the ancillary orders sought by the prosecution.

18Are there any other orders required?

19MS MELIOS:  No, there are none, Your Honour.

20HIS HONOUR:  Thank you.

‑ ‑ ‑