Director of Public Prosecutions v Zarb

[2019] VCC 493

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-01836

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE ZARB

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bendigo
DATE OF HEARING:	9 April 2019
DATE OF SENTENCE:	9 April 2019
CASE MAY BE CITED AS:	DPP v Zarb
MEDIUM NEUTRAL CITATION:	[2019] VCC 493

REASONS FOR SENTENCE
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CRIMINAL LAW –Sentencing - Trafficking in a Drug of Dependence – Cultivation of a Narcotic Plant – Handling Stolen Goods – Large quantity of stolen goods – Relevant Prior Convictions - Sentencing Act 1991 (Vic) - Drugs Poisons and Controlled Substances Act 1981 (Vic) - TES 4 years and 3 months' imprisonment – NPP 2 years and 3 months  -Forfeiture Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Cordy	Office of Public Prosecutions
For the Accused	Mr. M. Sturges.	Matthew White and Associates

HIS HONOUR: 

1Lee Simon Zarb, you have pleaded guilty to one count of trafficking in a drug of dependence, one count of cultivation of a narcotic plant, one count of handling stolen goods. You have also pleaded guilty to four summary matters, one of committing an indictable offence on bail, one of contravening a conduct condition of bail, one of possession of property reasonably suspected of being the proceeds of crime, dealing with property suspected of being the proceeds and crime and one of possessing cartridge ammunition without a licence or exemption. 

2The circumstances of the offending were set out in the prosecution opening which was read in open Court this morning, and which I incorporate via reference, Exhibit A, in brief outline. The offending arose following the execution by police of a search warrant, on a property that you were residing at in Lloyd Street, Bendigo on 17 November 2017.  You were there with co-offenders, Ms Dingfelder and Ms Ericson.  Both of them had been the subject of the conduct condition of a bail order made a month or so prior, and your association with them constitutes the related summary charge 7. 

3Police then searched the property and located in various items and various places around the property, methyl amphetamine totalling 67 grams pure with three particular packages, one of 54.9 grams with 83 per cent purity, another of 25.4 grams of 81 per cent purity, and another 4.4 grams of less than 2.7 per cent purity.  A number of the packages were in small amounts and there was also some cutting material found.

4In addition to that, the various accoutrements of drug trafficking were found located around the premises, including snaplock bags as I have indicated, tick sheets, vacuum sealed bags, digital scales found in various places, and a snaplock bag of methyl amphetamine found in the passenger seat of a vehicle that your co-offender Ms Ericson has admitted to possessing.

5In addition to that, are items that are directed to the offence of trafficking methyl amphetamine and the further offence of committing an indictable offence on bail, trafficking methyl amphetamine.

6In addition, in the backyard, three limp-looking cannabis plants were found, and two small cannabis plants were found in the garage. You had been seen on CCTV footage, watering those plants a couple of days prior, so that constitutes Charge 2, cultivation of cannabis.

7In addition, located in the premises were some nine or 10 watches that had been stolen from a gentleman in a suburb of Bendigo, and they constitute the charge 3 of handling stolen goods. 

8Around the property, there was then a veritable Aladdin's trove of property that constitutes the rolled-up charge of possession of property suspected of being proceeds of crime.

9I will come back to that, but in essence, and in addition to that, around the property in various locations inside the house, there was some cartridge ammunition found, .38 calibre as well as .22 calibre and of course, you do not have a Firearms licence. 

10You were arrested, gave a no-comment record of interview, and you have been in custody since that time which will be 17 months. You were dealt with subsequently on 25 June for some theft offences and you were sentenced to 103 days imprisonment which was time-served, also on 5 October 2018, you were sentenced to two months' imprisonment for contravention of a community corrections order which had been imposed in May 2017. You committed this offending while you were on a community corrections order.  So you have been in custody for 508 days which is about 17 months and 344 of those days, not including today, constitute pre-sentence detention.

11One of your co-offenders, Ms Dingfelder who is aged just 20, pleaded guilty in the Magistrates' to trafficking methyl amphetamine on the same basis as your charges, and had bail related charges, the same bail related charges and a rolled-up proceeds of crime charges, as well as possession of a prohibited weapon, but not the cultivating cannabis.  She has failed to attend for a further plea.  She had no prior convictions.

12The other co-offender, Ms Ericson, her cases were resolved by possession of methyl amphetamine in the vehicle, cultivating cannabis, committing an indictable offence on bail and contravening a conduct condition of bail and she was sentenced to 96 days imprisonment.  She has 24 pages of prior criminal history.

13To go back to the summary charge of dealing with property reasonably suspected of being the proceeds of crime, the full details were read on the plea, but it is interesting to note that there were some 25 mobile phones, 7 driver's licences, 18 laptops, identity-type documents for 19 individuals, bank cards for 3 individuals, a companion card for another individual, 2 healthcare cards, 1 passport as well as a number of other items, including cameras, $1660 cash, scanners, a hard drive, and other electrical equipment. So it was a veritable hoard of items. 

Seriousness of the offending. 

14The Drugs Poisons and Controlled Substances Act[1] establishes a quantity based system of offence seriousness.  Possession of more than 3 grams of methyl amphetamine is deemed to be possession of the drug for the purpose of trafficking. 

[1] 1981 (Vic)

15In your case you were in possession, jointly with your co-offenders, of 67 grams pure.  This is above the commercial quantity of methyl amphetamine which is 50 grams.  This goes to the seriousness of the offending.

16The offending was only for a single day, however your culpability for the offending must be considered in the context of what was found upon the execution of the warrant.  

17As submitted by the learned Crown prosecutor, you had all the accoutrements of being in the business of trafficking methyl amphetamine. This included as I have said, scales, Ziploc bags, drugs already apportioned into deal- sized bags, tick lists, cash, and the hoard of stolen goods that is well known as the currency of drug dealers and drug users.

18These accoutrements, and the quantity of pure methyl amphetamine found, in and of themselves, put your offending as above the mid -range of offending.  

19Further, there are the aggravating factors in that at the time of the offending you were on a Community Corrections Order for trafficking of heroin as well as possessing methyl amphetamine and cannabis, and dealing with the proceeds of crime.  Further you were on bail at the time.

20In addition, you have a number of other prior convictions for drug possession offences, trafficking and use, as well as numerous prior convictions for dishonesty-type offences.

21All of these matters put your moral culpability for all of the offending here, and in particular, the trafficking count, as high.

22Turning to the other offences, the learned Crown prosecutor conceded that the offence of cannabis cultivation was at the lower end of the scale.  I accept that, but do note that you have prior convictions for cultivation of cannabis in 2007, 2006 and 2005.

23In relation to the handling of the stolen goods, being the watches, this is a lower-level offence as it appears the value of the watches was approximately $2000.

24In relation to the summary charges, the rolled up charge of dealing with goods suspected of being the proceeds of crime is a serious example of this offence.  As I have indicated, it constitutes a hoard of readily realisable movable chattels able to be converted into cash or drugs.  

25The sheer scale of the items found in your possession is staggering, and when one considers that all of those items would have been owned by some individual, the impact of your involvement in the possession of those items has had on those individuals who have been deprived on their property, shows the ripple-effect and victim impact of this offence.

26Your culpability for this offence is enhanced by your numerous prior convictions for dishonesty offences including dealing with property being suspected proceeds of crime on 5 May 2017, handling and receiving stolen goods on 1 September 2016, a Community Corrections Order imposed on 27 August 2014 for dealing with proceeds of crime, an aggregate sentence on 6 August 2012 that included an offence of dealing with property suspected being the proceeds of crime, a sentence on 11 October 2007 dealing with property the proceeds of crime, and a further sentence on 2 March 2005 for dealing with property the proceeds of crime.  You have other dishonesty-type offences including burglary and robbery in your criminal record.

27The two breach of bail conditions offences are of a lesser level of seriousness, but given your criminal record where you have two prior convictions for contravening a conduct condition of bail on 1 September 2016, and your failure to adhere to numerous community based orders shows a continuing disregard for the law manifested by these two offences.  In relation to the possessing ammunition without a licence offence, you have prior convictions for this offence as well.

28Overall, when looked at individually, in particular the charges on the indictment and the summary charge of dealing with property the proceeds of crime, and as a whole, this is a serious spate of offending, made more serious by the fact that you were on bail, and on a Community Corrections Order, and with your prior convictions.

29I have already referred to your prior convictions.  You have a 20 page criminal record which you have admitted, and I will not repeat them in detail.  I do note, however, that they commence when you were aged 19 and commenced with you receiving an intensive correction order at that age for offences of violence which you breached.  

30Thereafter for offences of dishonesty and violence you have received escalating dispositions including suspended sentences which you breached.  You have also been dealt with for numerous motor vehicle offences and you have been sentenced to a number of community corrections orders.

31Your prior convictions indicate that as submitted by your counsel, you have had long-term problems with drug addiction.  As set out in the Community Corrections Order contravention report in evidence, as tendered by your counsel, you have been the subject of six intensive corrections orders and breached four of those orders.  

32You also been the subject of three parole orders and successfully completed two of those orders and the third was cancelled.  You were placed on a CCO in August 2014 and contravened the order by further offending.  You were placed on a further CCO on 5 May 2017 and were found in contravention of that order by further offending so your prior convictions indicate that you have not responded to community-type dispositions in the past and you continue to recidivate.

33Matters in mitigation:  In a comprehensive plea your counsel put a number of matters in mitigation which I will refer to briefly and will take into account.

34First you pleaded guilty to the offending.  There was a contested committal in this matter in September 2018, but the matter was resolved after the committal in January this year.  The prosecution conceded that the plea was significant, as a contested trial would have consumed a significant amount of court time and you are to be given credit for facilitating the course of justice and obviating the need for such a trial.  Further, I do regard your plea as some evidence of remorse and insight.

35Turning to your personal circumstances, you are now aged 41.  On the plea your counsel indicated that you were born in the Western suburbs of Melbourne and are one of seven children.  Your family moved to the Bendigo area and purchased a chicken farm. Your mother and a sister were present in court to support you.  

36You have four children aged between 13 and six as a result of a relationship that endured for a period of 13 years.  The children are being looked after by your mother, as they were removed from their mother, your ex-partner, when you were incarcerated in 2009.  

37They have no contact with their biological mother, who is a drug addict and living in Melbourne.  The children are doing well under the care of your own mother.  Although you have not been seeing the children whilst on remand, they are a factor to be taken into account as a motivator for you not to reoffend upon release.

38The explanation for your offending put by your counsel was that you have been the subject of long-term drug addiction which has manifested itself in offending to support your habit and lapses after being given lenient dispositions.

39Your counsel referred to the Community Corrections report, which indicates that in your most recent Community Corrections Order, you did show some positive involvement, insight and motivation, including reduction in drug use and attendance at supervision appointments. Unfortunately however you reoffended and the order was cancelled and you were sentenced for the underlying offending.

40As submitted by your counsel, it is clearly in the community’s interest that you be rehabilitated and attempt to lead a useful life.  Whether you will be able to do that depends ultimately on whether or not you can shed your drug addiction.  

41Your failure to respond to multiple community dispositions in the past makes your prospects of rehabilitation, as submitted by the prosecutor, clouded at best.

42On the other hand you are now aged 41 and common experience is that often long-term drug users do cease around your age.  In your case this applies particularly given that you will be undergoing a significant period of imprisonment and thus will be in a position to be drug-free and contact with drug-using peers may be broken.

43I also note in your favour as submitted by your counsel, in the period that you have been on remand, you have undertaken a number of courses including harm-minimisation and drug and alcohol counselling, both of which indicate insight and a motivation to attend your long-term problems.  In order to facilitate your rehabilitation I am proposing a significant period where you will be eligible for parole supervision.

Sentencing submissions 

44Your counsel, in his submission, tendered the relevant sentencing snapshot.  As he indicated, this is of only limited assistance, however I do take into account the statistical material contained therein.

45Your counsel submitted that the trafficking count was in the lower range.  The prosecutor submitted however, that it was at least mid-range or above that.  Given the circumstances of the offence that I have already referred to and your antecedents, this is above mid-range offending.  I do not accept the submission that the selling of the methyl amphetamine was just for your own use.  The amount of accoutrements involved, the amount of drugs that were in your possession, the manner in which is was found, all indicate that you were operating, as counsel said, the prosecution said, in the business of drug-trafficking.

46The learned Crown prosecutor referred to four cases where sentences of the various durations for trafficking methyl amphetamine were imposed.  These sentences are of only limited assistance given the wide variety of circumstances involved in offences of trafficking methyl amphetamine, and the different antecedents of those involved.

Purposes of Sentencing 

47The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

48In sentencing you, your counsel accepted that considerations of general deterrence, denunciation and specific deterrence were relevant, however he submitted that considerations of totality and parsimony and the need to facilitate your rehabilitation also had weight.

49The learned Crown prosecutor accepted that considerations of totality were relevant and that some general account should be taken of the sentences that you have been serving for the other offending since your original arrest.  I have taken  that period of about five months imprisonment into account in fixing both a total effective sentence and a non-parole period.

50In sentencing you in this case for the offence of trafficking in methyl amphetamine, considerations of general and specific deterrence loom large.  Ice is a pernicious drug which is wreaking havoc in the community.  Its use is inevitably associated with other criminal activity and often leads to a downward spiral by those exposed to it.

51The sentences of the court must send a signal to those minded to traffic in that drug, that their conduct will be met with heavy penalties, even if part of the explanation for the trafficking is supplying their own use.

52The sentence of the court must manifest the community denunciation of your conduct and signal to the whole community that the courts will play their part in rebuilding the fabric of the community torn apart by your involvement with this illegal drug.

53In your case, given your prior convictions for drug trafficking including trafficking in heroin and cannabis, considerations of specific deterrence also loom large.  Protection of the community is also a relevant consideration.

54Weighed against this, is the interests of the community in your reclamation.  You have failed to respond to multiple prior opportunities in the past, however in the past you have only served relatively short terms of imprisonment and have not been given a significant period of parole supervision and that would indicate that there may be some hope that you will be able to get over your drug addiction upon your ultimate release. 

55Would you please stand: 

56The sentence of the court is as follows;

57On Charge 1 of trafficking methyl amphetamine, you are sentenced to three and a half years' gaol.  That is the base sentence. 

58On Charge 2 of cultivating cannabis, which is a maximum penalty of one year, you are sentenced to four months' imprisonment;

59On Charge 3 of handling stolen goods, you are sentenced to six months' imprisonment; 

60On the first summary offence of committing an indictable offence on bail, you are sentenced to one month imprisonment;

61On the second summary offence of contravening a bail condition, you are sentenced to one month imprisonment;

62On the third summary offence of possession of goods reasonably suspected of being the proceeds of crime, you are sentenced to 18 months' imprisonment;

63On the charge of possession of cartridge ammunition, you are convicted and fined $800. 

64I direct that the sentence of Charge 1 of three and a half years be the base sentence, and I order that two months of the sentence on Charge 3 and seven months of the sentence on the summary charge of dealing with property reasonably suspected of being the proceeds of crime, be served cumulatively on each other and on the base sentence, making a total effective sentence of four years and three months' imprisonment. 

65I order that you serve a period of two years and three months' imprisonment before being eligible for parole.  I declare pre-sentence detention of 344 days' imprisonment, excluding today.

66I declare that had you not pleaded guilty, I would have imposed a total effective sentence of five years and three months' imprisonment with a non-parole period of three years and six months' imprisonment. 

67The prosecution have sought a forfeiture order for the cartridge ammunition which I will make.  Are there any other matters, Mr Cordy?

68MR CORDY:  No, Your Honour.

69HIS HONOUR:  Any other matters Mr Sturges?

70MR STURGES:  No, Your Honour.

71HIS HONOUR:  I want to thank you both for you assistance in the plea, and adjourn until 9.30 tomorrow. 

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