Director of Public Prosecutions v Zhu

[2017] VCC 427

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02258

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONG ZHU

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v Zhu
MEDIUM NEUTRAL CITATION:	[2017] VCC 427

EX TEMPORE REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms W. Wang
For the Accused	Ms S. Stafford

HIS HONOUR:

1Dong Man Zhu, you have pleaded guilty to two charges of cultivating a narcotic plant in not less than a commercial quantity, being Charges 1 and 3, which carry with them a maximum penalty of 25 years' imprisonment; two related charges of theft of electricity, being Charges 2 and 4, which carry with them a maximum penalty of 10 year's imprisonment; and one charge, Charge 5, for possession of a drug of dependence, cannabis-L, which carries with it a maximum penalty of 5 years' imprisonment in the circumstances.

2On 17 August 2016, investigators from the Croydon Divisional Tasking Unit commenced an investigation into the cultivation of cannabis at 9 Shallot Road in Boronia.  As a result of that investigation, your vehicle was observed outside those premises on 26 August 2016 and the 3rd, 4th and 9 September 2016.  On that latter date, you were intercepted by investigators and found to have a mobile phone and numerous keys in your possession.

3The premises was then searched and police located 96 cannabis plants varying from mature to smaller sized plants growing in four rooms in the property.  Thus Charge 1, cultivating a narcotic plant.

4The interior of the house had been modified enabling plants to be cultivated using an elaborate heating, lighting and irrigation system running throughout the property.

5A search of your vehicle located two census forms for that Charlotte Road address and a second address at 34 Allanfield Crescent in Boronia, both in your name.

6The four hydroponic rooms were inspected and no less than 52 600 watt lamps and ballasts which were connected to timing devices for 12 hours of operation per day except for room 4 which was set for 21 hours operation per day.  The irregular wiring in the roof cavity was connected in such a way as to bypass AusNet's metering.  During the period between 26 August and 9 September, the amount of electricity stolen was no less than $2,401.70 which relates to Charge 2, that of theft.

7That same day investigators also attended the second address at
34 Allanfield Crescent in Boronia.  This was apparently a five minute walk from the first address.  Entry to the premises was gained through the garage roller door with the electric fob and then through the internal wall with a key located on the same key ring as the fob, both of which had been found in your vehicle.

8During the course of the search of that premises, police located 88 live cannabis plants, varying from mature to smaller size, growing in four rooms in the property.  Charge 3 relates to that cultivation.

9The interior of this house has also been modified, enabling plants to be cultivated using an elaborate heating, lighting and irrigation system running throughout the property.  Further investigation established again an irregular wiring connection in the roof cavity.  In the four hydroponic rooms, a total of 48 600 watts lamps and four 1000 watt lamps in ballasts were found to be connected to timing devices set for 12 hours of operation per day, except for room 4 which was set for 21 hours of operation per day.

10That irregular wiring was connected in such a way as to bypass AusNet's metering and as a result, between 31 August and 9 September 2016, $1534.08 was stolen.  This relates to Charge 4, theft.

11The cannabis plants seized from 9 Charlotte Road in Boronia which relates to Charge 1, had a total weight of 66.7 kg and in relation to
34 Allanfield Crescent, Boronia, the total weight of the cannabis plants was 53.92 kg.  A commercial quantity of cannabis is 25 kg or 100 plants.  Thus in relation to each property, in excess of twice the commercial quantity by weight was found at each of the two properties.

12The prosecution sought to prove that your role was greater than simply maintaining the crops by regular attendance at the premises.  It was submitted that I should be satisfied that your role went further in terms of you being more than a crop sitter.  It was suggested that via an exercise of considering a variety of different facts, it could be established that it was you who leased either or both of the premises.

13For reasons that I gave during the course of argument, I reject that submission.  For that aggravating factor to be established, it would have to be proven beyond reasonable doubt that such was the case.  Nonetheless the evidence does disclose that you were involved in maintaining the cultivation at two premises and that of itself is an aggravating feature.

14During the course of the search of your premises at 9 Peach Way, Templestowe on 10 September 2016, police located dried cannabis with a total weight of 80.6 grams in a rear shed and in the master bedroom a prohibited flip knife which is the subject of Summary Charge 16, and another prohibited knife which is the subject of Charge 17, also found with the cannabis in the rear shed.

15The maximum penalty for possession of cannabis, the subject of Charge 5, is as I have said, 5 years' imprisonment.  The maximum penalty for the summary offences, Charges 16 and 17 is 2 years' imprisonment.

16Since your arrest on 9 September to today’s date, you have been in custody. You have only one prior conviction, at the Melbourne Magistrates' Court on 13 January 1992, where you were fined $50 for being found in a common gaming house.  That matter is wholly irrelevant for my sentencing purposes other than establishing that you have a long history of gambling which I will come to in due course.

17You are a 52 year old man of Chinese heritage.  You were born in Shanghai and you have a brother.  Your father was a ship mechanic and your mother a labourer.  You came to Australia in December 1989 in order to study English, later applying for residency, you became a permanent resident and later obtained your Australian citizenship.

18In 1995, you married your wife Jun Loo and have two children by that marriage.  That marriage broke down in 2013, entirely as a result of your gambling addiction which goes back to your early adulthood.

19You have been employed as a chef at various Chinese restaurants and on occasions have been an owner of restaurants.  You have, as will be revealed, a strong work ethic and would have been a good provider for your family but for the vast sums of money that you gambled away over the years.

20Your wife did her very best to stop you but on no less than two occasions when she travelled back to China you re-mortgaged the house in order to obtain further funds for your gambling.  It is little wonder that the marriage broke down. The family disharmony was entirely your fault with arguments developing on a regular basis between you and your wife about your gambling.

21You are a man who has worked hard during your life, working long hours, up to 12 hours a day, seven days per week.  The testimonials that I have received as Exhibit's DZ1 and DZ3 speak to both your gambling addiction, your hard work and the failure of your marriage.  You are also described as a caring man.  Your fatal flaw was your addiction to gambling.

22You spent the money that you earned on gambling and you re-mortgaged your home on two occasions to fund your gambling.  You borrowed from friends and in one case $50,000 was provided to you with you acknowledging that debt to an associate on 12 October 2012, that acknowledgement of debt being
Exhibit DZ2.

23You borrowed from friends, associates, until each of those financial wells had become dry.  It was in those circumstances that you turned to cultivating these two crops in return for payment of $1000 per week.

24You played an essential role in the cultivation of these two crops.  Without your involvement the plants would fail or at least cease to thrive.  Thus you became involved in this evil trade for money, to fund your long term addiction to gambling.  Your gambling provides no excuse whatsoever for your conduct but provides an explanation for it.

25It was submitted that specific deterrence, that is, deterring you, ought be of less significance in this case.  Your prospects of rehabilitation are, subject to one matter, excellent, but that assessment is a guarded one.  For if you do not cease your gambling in its entirety, the financial wells, now dry, the prospects of you returning to offending are high.  The choice is yours.

26Thus in my view, there is a need for the sentence that I impose to deter you from re-offending in the future.  The principle sentencing factor I must take into account is deterring others from offending in the way that you have.  Further, the sentence I must impose is one which involves just punishment and the denunciation of your involvement in the drug trade.

27To your credit you have entered an early plea of guilty and I accept that plea of guilty not only in terms of its utility and the avoidance of a contested committal hearing and a trial but also as to some level of your remorse.

28I have given anxious consideration to the total sentence that I must impose in this matter and the individual sentences that I consider to be appropriate. Please stand. In all the circumstances, taking into account all relevant matters, on Charge 1 of cultivating a narcotic plant in a commercial quantity, I sentence you to 2 years' imprisonment.  That is the base sentence.  On Charge 2 of theft, I sentence you to be imprisoned for 3 months.  I direct that one month of that three months be served cumulatively on the sentence on Charge 1.  On Charge 3 of cultivating a narcotic plant in a commercial quantity, I sentence you to 2 years' imprisonment and I direct that nine months of that sentence be served cumulatively upon previous sentences.  On Charge 4, I sentence you to 3 months on that charge of theft and I direct that one month of that be served cumulatively on previous sentences.  On Charge 5, possess cannabis, I sentence you to be imprisoned for a period of 6 months and I direct that one month of that sentence be served cumulatively on previous sentences.  On the Summary Charges 16 and 17, I sentence you to be imprisoned for a period of 7 days.  There is no direction for cumulation on either of those charges.

29This produces a total effective sentence of 3 years' imprisonment and I direct that you serve a minimum period of 2 years before being eligible for parole.

30But for your pleas of guilty, I declare under s.6AAA of the Sentencing Act 1991 that I would otherwise have sentenced you to a period of 5 years' imprisonment and set a minimum 3 years' non-parole period.

31I declare that pre-sentence detention is 215 days.  Are there further orders,
Ms Wang?

32MS WANG:  Yes, I have got the ancillary orders to hand up to Your Honour.

33HIS HONOUR:  Ms Stafford, is there anything to be said about the disposal orders, forfeiture orders?  I do not think ‑ ‑ ‑

34MS STAFFORD:  There is no opposition, Your Honour.

35HIS HONOUR:  Yes, thank you.  The compensation orders too,
Ms Stafford?  I think there was no objection to that either?

36MS STAFFORD:  No opposition, Your Honour.

37HIS HONOUR:  Thank you.  Yes, Mr Zhu can be removed please.

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