Director of Public Prosecutions v Zhou
[2013] VCC 2039
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00269
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINGYE ZHOU |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 December 2013 | |
CASE MAY BE CITED AS: | DPP v Zhou | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2039 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Doyle | Office of Public Prosecutions |
| For the Accused | Ms L. Paric |
HER HONOUR:
1 Mingye Zhou, you have pleaded guilty to two charges of trafficking in a drug of dependence. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. The Prosecution made application for the taking of a forensic sample from you and also for the disposal of certain items. These applications were not opposed.
2 Your offending was detected in the course of a police investigation into the trafficking of heroin in the Eastern suburbs of Melbourne. A number of people were arrested and charged as a result of this investigation. Amongst these people are you and your two co-accused, Raymond Lee and Shou Long Lu. I sentenced Mr Lee on 12 December 2012. In respect of the heroin trafficking Mr Lee was sentenced to two years' imprisonment with a non-parole period of nine months. You and Mr Lu disputed the way in which the Prosecution described the role of each of you in the trafficking of heroin. A contested plea hearing was held and evidence was given by Mr Lee and others. I made certain findings including that I was not satisfied beyond reasonable doubt that the role of you and Mr Lu was at a higher level than that of Mr Lee.
3 I am sentencing you on the basis that the circumstances of your offending were as follows. Between 24 June 2011 and 24 October 2011 you were involved with Mr Lee and Mr Lu in the trafficking of heroin to other persons including Ms Brooke Sherriff. Ms Sherriff was a street level seller of heroin. You stored heroin at your premises and were paid for doing so. On occasion you assisted in weighing and packaging the drugs and the distribution of the drugs. Ms Sherriff would obtain heroin from your group by ringing and ordering an amount. A person would then meet her at a pre-arranged place with the drugs. You assisted in that process. It is estimated that approximately 320 grams of heroin was trafficked by the three of you in that period. This was an organised operation above the level of street trading.
4 I am sentencing you on the basis that it is not known where your group obtained the heroin from. Police found heroin in your flat when they executed a search warrant on 24 October 2011. That heroin was found to be 14 per cent pure. There is no evidence that you were cutting the heroin. I am sentencing you on the basis that your group was supplied with heroin of street level purity by an unknown supplier or suppliers who were closer to the source of the heroin than you three. The trafficking of heroin by the three of you is the subject matter of Charge 1.
5 When your flat was searched on 24 October 2011 police also found 53 deal bags containing crystal methylamphetamine which is known as ice. The total amount found was 29.3 grams with a purity between 80 per cent and 90 per cent. The ice was in your possession for the purposes of sale. That is the subject matter of Charge 2.
6 In sentencing you I have taken into account your personal circumstances. Those circumstances were outlined by your counsel and are also set out in the report of Ms Carla Lechner (psychologist) which was tendered as Exhibit Z1. You are now 25 years old. You were born and raised in China. You came to Australia by yourself when you were 17 to continue your education. You had learned English for about three months before you came. You found it difficult to adjust and had trouble finding a course which you enjoyed. With your father’s financial assistance you set up a sushi shop but that business was failing. In early 2011 you were in a relationship and your girlfriend became pregnant. You had begun using ice and it appears that your then girlfriend was also a drug user. It was against that background that you became involved in drug trafficking. Your counsel said you used the money you obtained to try to prop up the sushi business and to support your daily use of ice.
7 Your father was in court to support you having travelled from China for that purpose. You no longer have any contact with your daughter or her mother.
8 Ms Lechner says you now realise the seriousness of your offending and are sorry for the offending and its impact on your family. Ms Lechner assesses you as being emotionally immature and as being mildly to moderately depressed. She says this depression is mostly reactive to your current situation. Ms Lechner says there is a favourable prognosis in respect of your rehabilitation because you have severed ties with former friends who were involved with drugs, have significantly reduced your drug intake and have attended counselling. She says the process of being arrested and brought to court has had a salutary effect on you. She believes it would be best if you were to return to China as soon as practicable where you would benefit from the guidance of your parents.
9 A letter from Ms Vera Wang at Eastern Drug and Alcohol Service (Exhibit Z2) confirms that you attended counselling with that service for six sessions and engaged well.
10 Your counsel in sentencing submissions relied on the contents of these reports. Your counsel particularly relied in mitigation on:
a) Your youth;
b) Your lack of prior convictions;
c) Your personal circumstances;
d) The impact on you of being a foreign national particularly your isolation from your family;
e) Your good prospects for rehabilitation which would be enhanced by your return to China;
f) Your admissions, plea of guilty and remorse.
11. Your counsel submitted that the appropriate sentence would be a suspended sentence of imprisonment. Your counsel distinguished your situation from that of Mr Lee and Mr Lu in a number of ways. She suggested that as a drug user you participated ‘out of need rather than greed’. You have no prior criminal history while Mr Lee had received a community-based order without conviction for drug trafficking in 2010. You are in Australia as a foreign national on a temporary visa while Mr Lee is an Australian citizen and Mr Lu is a permanent resident. Your counsel submitted that a suspended sentence would meet the sentencing considerations of general deterrence and enabling your rehabilitation to continue.
12. The Prosecutor agreed that I should take into account your youth and isolation if imprisoned but submitted that only a sentence of imprisonment to be served immediately would meet the sentencing considerations of denunciation, punishment and general deterrence. He submitted that a suspended sentence would not give proper effect to parity principles in the light of the sentence imposed on Mr Lee for heroin trafficking.
13. Mr Zhou, I repeat what I said when sentencing Mr Lee. Your offending was very serious. The maximum penalties reflect that. The distribution of illegal drugs for profit is an evil trade. Those who engage in this trade exploit the vulnerabilities of others. The use of illegal drugs causes harm to individuals, families and the community as a whole. Your own situation is reflective of the harm caused to an individual as a result of an addiction to ice. I accept that your addiction was partly the reason for your offending but you were also trying to get money to prop up your failing business. In that sense I do not accept that your offending was out of need rather than greed.
14. You were involved over four months in the operation of a heroin trafficking enterprise as I have described. In addition to that you had in your possession for sale a significant amount of ice.
15. I have taken a number of matters into account in mitigation. You are relatively young. You have no prior criminal history. I consider your moral culpability somewhat reduced because of your own addiction to ice and circumstances at the time. Your addiction provides a partial explanation of your offending. Your prospects of rehabilitation would clearly be enhanced if you were able to cease use of illegal drugs. Your youth means that your rehabilitation is a very important sentencing consideration. You have made some progress in your rehabilitation although it is a concern that at the time of seeing Ms Lechner in June 2013 you had not entirely ceased use of illegal drugs. I consider that you would benefit from further counselling in respect of drug use.
16. It is clear from his presence and the content of your father’s letter tendered as Exhibit Z3 that you have the support of your family. As I have said, you have no prior convictions. I consider your prospects of rehabilitation to be reasonably good and accept that they would improve if you were able to return to China.
17. I have taken into account that you came to Australia alone at a very young age and had difficulties in settling in. I have also taken into account that any period of imprisonment will be more onerous for you because of your depression, isolation from family, lack of community support and limitations with English. I accept that you are distressed because you have not seen your mother for six years.
18. You are entitled to a significant discount for your plea of guilty and significant admissions to the police. In respect of you this matter was resolved prior to a contested committal and before Mr Lee had made his statement to the police. Your committal proceeded by way of hand up brief. You have saved the time and expense of a trial. I am satisfied that you are remorseful.
19. Drug trafficking of the type you engaged in warrants a sentence of imprisonment for the purposes of denunciation, punishment and general deterrence. As I have said before, it is to be hoped that other people will factor in the risk of imprisonment when deciding whether or not to get involved in the trade in illegal drugs. Hopefully at least some people will decide against becoming involved because they understand that they are likely to go to prison if they are caught.
20. Specific deterrence ought to have some, albeit reduced, weight in your sentence. I accept that specific deterrence has been achieved already to a certain extent.
21. I consider that a wholly suspended sentence would not properly reflect the seriousness of your offending and the need for general deterrence, denunciation and just punishment. Such a sentence would offend against principles of parity in respect of Mr Lee even after taking into account matters relevant to each of you. Your rehabilitation ought be given significant weight in the sentence to be imposed but not to the extent of overwhelming the other sentencing considerations particularly the need for general deterrence.
22. I have also taken into account the principles of totality and proportionality in the sentences to be imposed. I consider that some small cumulation in sentence is appropriate to reflect the additional criminality involved in Charge 2.
23. I have set a non-parole period which reflects considerations of your age, potential difficulties in custody and prospects for rehabilitation.
24. Charge 1, of trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of 32 months.
25. Charge 2, of trafficking in a drug of dependence, you are convicted and sentenced to a term of imprisonment of ten months.
26. The sentence on Charge 1 is the base sentence. Two months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1.
27. The total effective sentence is 34 months' imprisonment. I fix 17 months as the period you are required to serve before being eligible for release on parole.
28. I declare you have served two days of this sentence by way of pre-sentence detention to be deducted administratively.
29. But for your plea of guilty I would have sentenced you to a term of imprisonment of four years' with a non-parole period of two years and nine months.
30. I make the orders for disposal and the taking of a forensic sample from you.
31. I make the order for the taking of a forensic sample, because of the seriousness of the circumstances of your offending, your consent and the public interest. Mr Zhou, I am sure that you will co-operate when the authorities come to take the sample. I am required to inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
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