Director of Public Prosecutions v Zhang
[2019] VCC 442
•3 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 18-00586
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANKIE ZHANG |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 April 2019 | |
CASE MAY BE CITED AS: | DPP v Zhang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 442 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | OPP |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1 Frankie Zhang, you have pleaded guilty to a charge of trafficking in a drug of dependence between 25 October 2016 and 29 May 2017.
2 The drugs trafficked were methylamphetamine, heroin and 1,4-Butanediol.
3 You also pleaded guilty to three relevant summary offences, possess a prohibited weapon without an exemption or approval, namely a laser light, a flick knife and two swords; possess a controlled weapon without lawful excuse, a multi tool, and deal with property suspected of being proceeds of crime, namely a Kawasaki motorcycle, helmet and gloves.
4 At the time of the offending you were 23 years old, you are now 25. These charges arise out of your arrest by police on 29 May 2017 which then led police to other evidence the basis of each of the charges. On that day police were alerted to a person loitering in an area of Abbotsford. When the police located you, you were sitting on the ground next to a motorcycle, you said you were minding it for a person unknown to you for $500. A helmet was next to the bike and you were wearing motorcycle gloves.
5 You told police your name was Zheng Kenzhang, you produced a licence purportedly yours but which was in fact your brother's licence in that name. Held in your hand police found a quantity of heroin. A further search found you in possession of the drug ice which was divided into small Ziploc bags. Two larger Ziploc bags were found in your jacket. You had $224 in cash in your wallet and a push button flick knife with a 9 centimetre blade in the waistband of your trousers.
6 The backpack you had contained more heroin, a hundred small empty deal bags, three sets of scales, a laser light, a multi tool, a car key, a Ziploc bag with multiple identification cards in various names of other people, Medicare and bankcards and miscellaneous cards in your name as well as photos and letters from your co-accused Nisa Cui.
7 The substances found in your possession were analysed. They were 0.1 grams of heroin at 41 per cent purity, 55 grams of ice at 85 per cent purity, a further 3.7 grams at 84 per cent purity and a further 1.2 grams of heroin at 42 per cent purity.
8 You were taken to the Richmond Police Station and police found numerous texts messages dating back to 25 October 2016 related to trafficking in drugs and photographs of a large quantity of drugs in large Ziploc bags.
9 A warrant to search your address in Doncaster was executed on 30 May. Ms Cui, your girlfriend at the time who was living with you at that address was present, as well as two other males. Photographs were taken of the contents which were exhibited. Numerous items were located containing different substances, some of which were drugs. These are itemised and described in paragraph 15 of the prosecution opening and related to the weight and purity of cocaine, ice, heroin, alprazolam, Butanediol, four items in liquid forms of 336 grams, 20.5, 20.7 and 21 grams respectively. A safe was found next to a bed in a bedroom which was opened at the police station and more drugs were found to be inside it including heroin and ice. Items indicative of drug trafficking, numerous written notations recording drug transactions, scales and clip seal deal bags were found together with $998 in cash and a number of weapons. Inside a Volkswagen van which was opened using the key found in your possession, two black bladed swords in sheaths were found. Biological samples from various plastic bags seized which contained methylamphetamine revealed your DNA profile when tested.
10 You were remanded on 29 May 2017. On 6 September 2017 you received a term of imprisonment for unrelated matters. Ninety days were credited to you by way of pre-sentence detention. In relation to these matters, I have been informed that you have spent 584 days in pre-sentence detention in relation to them.
11 These matters were listed for trial on 15 October 2018 and on that day the matters resolved into a plea.
12 Trafficking drugs under s.71AC(1) carries 15 years maximum penalty. Possess a controlled weapon carries 120 penalty units or one year imprisonment. Possess a prohibited weapon carries 240 penalty units or two years. Dealing with property suspected of being proceeds of crime under s.185 carries two years maximum imprisonment.
13 It hardly needs restating that trafficking in the kind of drugs here is an insidious and pernicious trade. The impact of drug trafficking on the community is enormous. Aside from the consequential crime of all kinds related to drug and its trafficking, the physical impact and damage caused by drugs causes individuals, families and the community much grief and consternation. It is a repulsive trade with high moral culpability which requires planning, often using sophisticated arrangements and tools. It is a serious offence reflected in the maximum applicable I have mentioned.
14 I take your plea into account. It was offered and accepted very late in the piece but the plea to a trafficking simpliciter had been offered earlier in negotiations and I consider it to be relatively early from that point of view, although due to its utilitarian value it will also attract a reduction of sentence.
15 I take your personal circumstances into account. You were born in Guangzhou Province in China. When you were an infant your parents settled in Melbourne where you have lived all your life. Your father operated a successful construction business in China and only lived with the family for about a month per year. Your home environment was not marred by violence, alcohol or drug use. However, your drug use and associated criminal offending has created strains in the relationship. You have an older brother who lives with your father in China. He also appears estranged from you because of your drug use.
16 Your education was interrupted by cannabis use and your associations. You were expelled in Year 8. You were ordered to serve juvenile detention but again in Year 9 you were expelled. You have never been employed. You candidly acknowledged to Mr Jeffrey Cummins that you had generated an income by selling drugs. I should make clear that I am imposing a sentence not for what may be inferred as being your involvement with trading in drugs beyond the period alleged and pleaded to this indictment.
17 Mr Cummins, an experienced consulting clinical and forensic psychologist provided a report to the court dated December 2018. While dependent on methamphetamine you told Mr Cummins you became involved in gambling. Your drug abuse extended to Valium and Xanax. You have never married and have no children. Most of your relationships have been drug based. The relationship with Ms Cui your co-offender was based on drug use. Your use of drugs beyond cannabis started around age 14. By age 16 you were addicted to heroin and methamphetamine. You have not undergone any drug detoxification or residential drug rehabilitation. You told Mr Cummins you felt unable to stop trafficking because of your own dependence on drugs. He opined you probably have an antisocial personality disorder related to your drug use with a risk of institutionalisation. In his opinion you did not speak confidently about being able to remain drug free when you return to the community. His prognosis of you is guarded. You did not appear particularly motivated to undertake drug rehabilitation but would attend if ordered to do so. It may be that you feel personally powerless to control your use of illicit substances, but in any event your prospects for rehabilitation must be guarded.
18
This assessment as to your prospects is supported by a review of your prior criminal history which contains significant and serious priors. At age 15 in October of 2009 you faced the Children's Court for attempted armed robbery, assault, six armed robbery charges, two robbery charges and intentionally causing injury and you were placed on a Youth Supervision Order for
18 months. You breached this order and in June of 2011 the order was confirmed by that court. The breaching offences were charges of two counts of recklessly cause injury and armed robbery. You were ordered to be detained in a youth justice centre for 20 months.
19 In June of 2012 the Magistrates' Court dealt with an offence of affray where a further period of four months was ordered. Then in March 2013 for an earlier assault in company, which had not been dealt with by the court, it was adjourned without conviction. In 2015 at the Dandenong Magistrates' Court you were sentenced for possession of a controlled weapon, bail and driving offences, dealing with property the proceeds of crime, theft of a car, and trafficking in methylamphetamine. You were given a 24 day sentence with the time held in custody reckoned as time served. You were placed on a Community Corrections Order for 18 months with conditions for treatment and rehabilitation. That Community Corrections Order was subsequently breached by you by offending which the court dealt with in June of 2016. On that occasion you were imprisoned for ten months with 258 days' time held in custody declared. The offences were possession of heroin, methylamphetamine, possession of a weapon and trafficking in methylamphetamine. You were again placed on a Community Corrections Order to commence on 29 September for 18 months after your release from detention. This means of course that you were subject of such an order when you committed these offences, that is within a month of the commencement of such an order.
20 It is clear that the sanctions of the court have had little impact to moderate your behaviour and therefore specific deterrence is an important consideration in this sentence. Another primary principle which sentence must address is punishment and general deterrence. The court must denounce this conduct and seek to deter you from such behaviour and others who may be like minded. Of course apart from stern punishment the court must not lose sight of rehabilitative efforts, the parole period I impose will hopefully entail a commitment on your part to finally address your drug use. Without such commitment your prospects are indeed bleak.
21 I have taken into account that while in reclusion you have used the opportunities available to you to undertake some vocational and beneficial courses. I have sighted the certificates of completion for these courses and I take these efforts into account, the most important of which has been managing ice addiction program, and programs on the effects of ice. I accept as is often the case that there is here no evidence of vast amounts of money, large profits or expenditure on luxuries which have flowed from your criminality.
22 Please stand.
23 On trafficking a drug of dependence you are convicted and sentenced to three and a half years' imprisonment.
24 On possess prohibited weapon you are convicted and sentenced to three months' imprisonment.
25 On a possess controlled weapon you are convicted and sentenced to one month imprisonment.
26 On dealing in property reasonably suspected of being proceeds of crime, you are convicted and sentenced to six months' imprisonment.
27
I order one month on the prohibited weapon charge, and two months on the proceeds of crime charged to be cumulative on the base sentence of trafficking making a total effective sentence of three years and nine months. I fix a
non-parole period of two and a half years. I declare that 584 days have been served by way of pre-sentence detention. I will have that number noted in the records of the court and reckoned as time served towards the sentence.
28 But for your plea I would have sentenced you to four and a half years' imprisonment with a three year non-parole period.
29 I have signed disposal orders.
MS PEZZIMENTI: As Your Honour pleases.
MR NIKAKIS: As Your Honour pleases.
HIS HONOUR: Yes, Mr Zhang can be removed.
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