CDirector of Public Prosecutions v Rapollari
[2023] VCC 1429
•14 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00826
CR 22-00300
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| HILARY RAPOLLARI MIGEN CARCIA |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June 2023 |
DATE OF SENTENCE: | 14 August 2023 |
CASE MAY BE CITED AS: | CDPP v Rapollari & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1429 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Cultivate Marketable Quantity of a Controlled Plant – Plea – Deterrence – Denunciation – Deportation – Mitigation.
Cases Cited:Hague v The Queen [2022] VSCA 17; Baroch v The Queen; Ater v The Queen [2022] VSCA 90.
Sentence:CARCIA: 11 months imprisonment with release after six months on recognisance release for two years and the sum of $1,000.
RAPOLLARI: 6 months imprisonment with immediate release on recognisance for 12 months in the sum of $800.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr J. Morrison | Office of Public Prosecutions (Cth) |
For Offender Rapollari | Mr G. Vassis | Vassis & Co |
For Offender Carcia | Mr W.M. Toohey | Vassis & Co |
HIS HONOUR:
1Migen Carcia, on 17 March 2023, I indicated to you what sentence I would likely impose if you pleaded guilty to one charge of cultivating a marketable quantity of cannabis.
2I indicated I would impose a sentence of 11 months' imprisonment with a recognisance release after serving six months. The recognisance release itself was for a period of two years and in the sum of $1,000.
3You accepted that indication and pleaded guilty on arraignment on 17 March 2023. A full plea was listed for 16 June 2023 but was adjourned to allow for more material to be secured going to the issue of family hardship, specifically the health and wellbeing of your partner and your newly born child.
4Today I have received a letter dated 10 August 2023 from psychologist, Ms Balsara-Mistry who provides counselling via telehealth to your partner, Ms Kirkman, which indicates to me her anxieties and worries about managing her life with a newborn child, in particular if you are incarcerated. Your counsel addressed that issue as well in submissions saying things have improved slightly from where they were, given that she has the psychological counselling. However, it will weigh upon you in custody. That in fact is the area of mitigation, that is, custody will be harder to you by reason of the hardship that your family is enduring. I will refer to this again shortly.
5As to the facts and circumstances of your offending, I can summarise the prosecution opening by reference to the reasons given at the sentence indication. I will, as I say, refer, and in fact repeat, much of what is set out in those reasons.
6The offending is that you cultivated by tending to a crop of cannabis in a suburban house in Keysborough. It is alleged your cultivation was for commercial purposes in that you had a belief that another person intended to sell the product. More precisely, as to your tending the crop, you went to the property on six occasions through a 17-day period between 20 May and 6 June 2021. On closer analysis, you were seen there by surveillance to be at the premise in two-day blocks on 20 and 21 May, 23 and 24 May and 5 and 6 June. As I say, this evidence was from the surveillance operatives. On your first visit you stayed for three hours, which was the longest stint. The shortest was 15 minutes. In the main you were there for about an hour or so.
7You do not reside at the house to cultivate and protect the crop, you attended, did what task you had to do, and then left. That appears to be the scope of the allegation against you.
8The crop was clearly commenced before you were seen there on 20 May 2021. It was a crop that must have been near harvest by 6 June 2021. I make that observation from the photographs that were tendered. Thus, the relatively small number of plants, being 34, weighed 65 kilograms. The system of cultivation was sophisticated as these industrial cannabis production houses always are.
9The point made by your counsel was your role must be seen as low in the scheme of things. The prosecution submits that it was a significant crop, successfully grown to the weight of 65 kilograms, and you played an important role of tending to the crop believing that someone was to reap the profits from the sale of this illicit drug.
10The motivation in these enterprises, and the motivation you had, was greed for the profits that are to be made. However, your counsel submitted that your motivation was to get something, some money in circumstances of the pandemic that had left you in dire financial straits.
11As to the purposes of sentencing, these are set out in s 16A of the Crimes Act (Cth). I can be brief and broad in setting out that punishment of you, that is, by denunciation, and deterrence are the most important considerations.
12Deterrence looms large to you because you have a highly relevant prior conviction for cultivation of cannabis. You were in 2018 sentenced to 17 days' imprisonment, being the time that you had served, and a two-year community corrections order for cultivation simpliciter as it is termed. The amount involved in that suburban crop house was 46 kilograms which was over the commercial quantity, but it was settled for the lesser offence of cultivation simpliciter.
13You, at the time, were 20 when you offended in 2022 at the time of sentence. The merciful sentence for a young first offender imposed by the magistrate, or the mercy shown by the magistrate, is for an offence, as I have said, is highly relevant to my sentence here. You, as a young man, were given a chance, you did not take it up, but reasonably quickly engaged in exactly the same sort of offending. You cannot expect to be treated with such mercy as you were by the magistrate back in 2018. That said, you are not to be re-punished for the earlier crimes. Its relevance is to increase the weight to be given to deterrents to you and lower the confidence that I can have that you will ultimately reform.
14Your personal circumstances are you came to Australia from Albania in 2017. You were, you say, in fear of criminals in Albania endeavouring to exhort money or gold from you. You came to Australia on a tourist visa. You overstayed by many years. You have applied for a protection visa which was at first refused. You are appealing that refusal.
15You instruct that you are self-employed in renovations and tiling. You had limited work during the pandemic and you hit dire financial straits.
16Most important in your personal circumstances are that you are in a relationship, or have been in a relationship for some years, marrying your partner in June of 2022.
17At the time of the sentence indication your partner was expecting a child, due to be born in mid-2023, but your daughter was born prematurely on 30 April 2023. She, your daughter, has undergone some surgical procedures. Your partner has struggled with post-natal depression. As I indicated, I have received a letter from her counsellors. Today, I am encouraged to see that she has received, via her general practitioner, access to appropriate counselling. As I said, she feels anxious about day-to-day tasks, she is concerned about your situation in the criminal justice system, she is concerned about your financial situation. I am told, of course, that you have done all you can by working doubly hard in the recent past to gather as much savings as possible.
18Your partner reported to the psychologist that there are changes in her mood and reduced motivation. She has limited supports because of family in New Zealand. But the situation is improved from perhaps what it was when the matter was adjourned in June of 2023.
19Emphasis was then properly given to hardship to your family if you were to be imprisoned. It is a factor important given your partner's family are in New Zealand, as I have said. She has no family support and is reliant upon those psychological clinicians and maternal health providers and the like.
20Also, emphasis was given, appropriately, to your risk of deportation. If you are gaoled it will be more onerous because you will be worried about being deported from Australia where your wife and child are citizens. Also, you would be concerned as to your lost opportunity to live permanently in Australia with your new family. This last factor is more problematic because you have already had an application to stay in Australia refused. Nonetheless, the lost opportunity is of some weight as per the appellant authorities that are set out in the cases of Hague,[1] Baroch and Ater.[2] So I take into account your concern, which makes gaol more onerous. I also take into account that you will, as I have said, be concerned about how your wife is coping.
[1]Hague v The Queen [2022] VSCA 17.
[2]Baroch v The Queen; Ater v The Queen [2022] VSCA 90.
21A further important matter in mitigation is your plea of guilty does carry utilitarian benefits which are of augmented value because the criminal justice system is still under considerable strain due to the pandemic, thus, I am to make clear to you, palpable to you, the benefit that you receive from pleading guilty at this time and it should be a benefit that encourages others who are guilty to plead guilty. Your plea of guilty has value as you have relieved the prosecution of the always taxing task of proof beyond reasonable doubt.
22The particular Commonwealth crime that you are facing is rarely charged, I obtain guidance, to a degree, from the State offences but the State offences are now Category 2 offences which means under the State regime I am required to give actual imprisonment unless a strict exempting criteria are established. I should say the Commonwealth offence does not have a similar fetter upon my sentencing discretion. But all that said, for some time before and since the pandemic and before and since the Category 2 type amendments in the Sentencing Act 1991, gaol terms have been imposed for those who are involved in cultivation at this quantity, whatever the role they have played.
23The prosecution urged that the sentence be in line with those other cases in the State regime and be of an order that will require a non-parole to be fixed.
24Your counsel acknowledged the seriousness of the offending and the problems that you face, effectively, by reason of your prior conviction. But he submitted a gaol term that is followed by an immediate release on recognisance was well open and appropriate given your personal circumstances.
25This outcome is one that I have given some anxious consideration to but in the end my view is that a gaol term with an immediate release would dilute too much the important sentencing considerations and deterrence to you and to others. A sentence that has an immediate release would not be of the severity appropriate to the offending committed by you as the offender, to paraphrase the Commonwealth statute. In my view, some immediate incarceration and then release on recognisance would be the appropriate penalty, as that balances the need for deterrence, punishment, and takes into account your circumstances and your plea of guilty in pandemic times.
26I indicated to you the sentence that I would impose. I have thought as to whether there should be some further tinkering of that sentence by reason of your wife's condition. It was always anticipated that your wife would give birth while you were in custody, but in fact that did not occur, you were there for the birth of your child and you will now face the situation of being separated from your partner and your child for some months.
27In the end I have determined not to change the indication, which, in my view, was very merciful indeed to set a sentence at 11 months, tailored in a way in respect of the deportation matters and see you released after serving six months. I would take into account that you have done 16 days of prison already. That may multiply if the prison authorities apply administrative calculations to that given lockdowns.
28So I indicated that I would sentence you to 11 months but with release after six months on recognisance release for two years and the sum of $1,000. That is the sentence that I impose.
29I should indicate to you, had you pleaded not guilty to these offences and been found guilty, I would have imposed a sentence of three years with a minimum of two years. You can see the palpable difference there is to those who plead.
30There will be documents that have to be signed when sorted out, the crown will hopefully provide those to me in due course.
31MR MORRISON: Yes, Your Honour, I have just sent a draft recognisance release order to your Associate.
32HIS HONOUR: Thank you. Mr Vassis, I am in a position to impose sentence on Ms Rapollari.
33MR VASSIS: Yes, Your Honour.
34HIS HONOUR: Thank you.
35Hilary Rapollari, you have pleaded guilty to one charge of cultivating a marketable quantity of cannabis.
36The charge arose out of an investigation into other offenders which led to a raid on a house at 26 Newbury Street, Keysborough. What was found was 20 mature plants with a weight of 34 kilograms. The threshold for a marketable quantity by weight is 25 kilograms.
37The period of time of the cultivation alleged against you is from 22 July to 2 August 2022. It is alleged you attended at the house on five occasions being 22,26,29 and 30 July and then on 2 August 2022.
38On the last occasion you were there, having spoken to a key co-accused, just moments before the Australian Federal Police arrived and arrested you. How and why you became involved in this cannabis operation was made clearer by your counsel's submissions on the plea.
39You are a young woman, just 23 when you offended.
40You were born in Italy. You have Albanian heritage. Your family are close and your upbringing was positive.
41You moved from school to some studies in social work, however, your interests were in clothing design. You opened and ran a shop with a business partner.
42You married young and separated in early 2022. This caused difficulties with your family who hold traditional views.
43You decided to start afresh by travelling to Australia. You had one connection in Australia, your cousin and now co-accused, Mr Catini. You lived briefly with Catini on your arrival in Australia before moving to a share house in the suburbs.
44You gained worked quickly as a waitress in an Italian restaurant and found you were grossly underpaid. You left that work and struggled financially, needing money to pay rent. That was the prompt to be involved in this enterprise of cultivation in the house at Keysborough.
45After your arrest and bail you have continued to work in hospitality having secured properly paid employment. Your strong desire is to return to Italy.
46You are an Italian citizen. You have no prior convictions in Italy and on subsequent to this offending in Australia. Your bail conditions meant that you have had to remain in Australia over your desire to go home. You were unable to attend an important funeral in Italy due to your bail restrictions.
47Your role in the cannabis production scheme is recognised by the prosecution and emphasised by your counsel to be at the lower end. You provided a check on the crop, indicated such things as when fertiliser was needed to the main organisers. You were not to be part of the profits, rather you expected some money to assist you in your difficult financial circumstances. You were under the influence of your cousin and co-accused, Mr Kotini, and a Mr Molla, who was higher up in the organisation.
48As has been said by the appellant court with respect to cannabis grow houses, general deterrence and denunciation reigns important no matter what level or role a particular accused plays. Each role is important, in particular as the entrepreneurial organisers often use vulnerable assistants with no criminal record to keep those entrepreneurial organisers at arm's length from the crops. Here it is clear that once someone like you was recruited and instructed you became a trusted and important participant in ensuring the plants grew under the indoor horticultural systems set up by the main players.
49The crop here was healthy but not at the vast levels sometimes seen in these courts, the 20 plants weighed 34 kilograms and thus were nine kilograms over the threshold. The expected profits were likely to be significant, but again, not in the same order as many cases that come before this court.
50Your counsel urged I impose a fine upon you, while at the same time submitting that your income as a waitress meant that you were existing by and large hand to mouth.
51The prosecution argued that a term of imprisonment was warranted, though it was conceded that I should consider your position more leniently than I had with the related offender, Mr Carcia.
52As you have just heard, I have imposed a sentence of imprisonment of 11 months with release after six months upon Mr Carcia. His crop was bigger and he had a very relevant prior conviction. On the other side, he had very significant family hardship and the weight of possible deportation and separation from his wife and child. They weighed heavily on him.
53You, in contrast, want to leave, that is leave Australia - not be deported but just leave Australia – to recommence your life in Italy.
54As I have made clear, denunciation and general deterrence are weighty considerations in these type of offences. Most, if not all, those that are involved in crop sitting or involved in some level in a grow house are under the State regime imposed upon them are sentences of imprisonment. Those involved in cannabis production profit significantly while the community bears the burden of those who are addicted to cannabis.
55In your case the circumstances of the offending, your limited role and your personal circumstances lead me to the conclusion that immediate imprisonment is not required, but in my view a fine would be not appropriate. Rather, I would impose a six-month sentence of imprisonment with an order that you are immediately released on recognisance for 12 months in the sum of $800.
56Had you pleaded not guilty to these offences I would have imposed a two year recognisance release after you had served 12 months' imprisonment. Is there anything further required?
57MR VASSIS: No, Your Honour.
58HIS HONOUR: Can you do the work for that?
59MR MORRISON: Yes, Your Honour. Sorry, could I just confirm the order, I was responding to your Associate when ‑ ‑ ‑
60HIS HONOUR: Not at all. So it's a sentence of six months' imprisonment with immediate release on recognisance.
61MR MORRISON: And it was 800.
62HIS HONOUR: Eight hundred dollars with 12 months.
63MR MORRISON: Thank you, Your Honour.
64HIS HONOUR: Just to make it clear to you, Ms Rapollari, and your lawyer will; the sentence that I have imposed is six months but you do not have to go to gaol, you are immediately released into the community to be of good behaviour and if you wish to take up, and your lawyer will assist you in leaving Australia, that's a matter that you need to look into with the authorities. Do you understand that?
65OFFENDER RAPOLLARI: (Indistinct)
66HIS HONOUR: Do you understand that? I know your English is not perfect – and we don't have an interpreter. I'm just going to ask Mr Vassis to go and see whether ‑ ‑ ‑
67MR VASSIS: I was about to ask ‑ ‑ ‑
68HIS HONOUR: Yes, go and see.
69MR VASSIS: Just briefly, thank you, Your Honour. Thank you, Your Honour.
70HIS HONOUR: She understands?
71MR VASSIS: Yes, she does. She was a little bit confused about the six months starting ‑ ‑ ‑
72HIS HONOUR: Yes, of course. So documents will be produced for signatures. I think that has to be done in court, doesn't it, Mr Morrison?
73MR MORRISON: Yes, Your Honour, and I have just sent the order in relation to Ms Rapollari and hopefully it will come through shortly.
74HIS HONOUR: Mr Carcia, I will sign a document that says the court orders the release of you under Paragraph 21D of the Crimes Act after you have served six months, upon you giving security in the recognisance for $1,000 to be of good behaviour for two years. So the sentence is 11 months but you have to serve six months. Do you understand that?
75OFFENDER CARCIA: Yes.
76HIS HONOUR: I will sign that document. And Mr Toohey or Mr Vassis if you go down and get him to sign those.
77MR VASSIS: Yes, Your Honour.
78HIS HONOUR: He has to do it before my Associate who is going to sign her name as Judge's Associate. I am not going to have people whose names don't need to be on documents, personally on documents these days.
79MR VASSIS: As Your Honour please.
80HIS HONOUR: Are you satisfied with that, if she just indicates she is ‑ ‑ ‑
81MR VASSIS: Yes, Your Honour.
82HIS HONOUR: So if you would go to the back of the court with Mr Carcia.
83MR VASSIS: Yes.
84HIS HONOUR: The order that I will sign as well as that, Mr Morrison and Mr Toohey, will be clear that 16 days has been reckoned as the time he's already served and I'll make sure that figure has been reckoned as declared as part of the sentence I've just imposed.
85MR MORRISON: Yes, Your Honour. For your Associate's benefit, I just sent a second order for Ms Rapollari, the first had an error in it.
86HIS HONOUR: Okay. It's just taking some time to come through.
87MR MORRISON: It will be the second email that comes through and the document's got 003 attached to it, if that assists.
88HIS HONOUR: All right.
89MR MORRISON: I can point out the error if Your Honour would just like to amend it yourself.
90HIS HONOUR: All right, yes.
91MR MORRISON: But the other one should be ‑ ‑ ‑
92HIS HONOUR: So the one that my Associate just picked out of the printer is the wrong one. So what's the error?
93MR MORRISON: Just at the top you'll note that it says 'release after six months', it should be struck out and just 'forthwith.'
94HIS HONOUR: I think I'll get that part, that's not mine ‑ ‑ ‑
95MR MORRISON: Yes, Your Honour, that's why I made the amendment. Ms Rapollari, the order I have signed says that you are to be released forthwith. The sentence of six months' imprisonment is imposed but you are to be released forthwith on condition you be of good behaviour for 12 months. I have signed that document, that brings the matter to an end. Thank you, Mr Vassis.
96MR VASSIS: Thank you, Your Honour. Thank you, Your Honour, Ms Rapollari has signed the order.
97HIS HONOUR: Thank you. All right, those documents signed, there will be other orders that I'll sign when they're printed. I think that certainly brings an end to Ms Rapollari's matter, she can leave the dock. Mr Carcia, you have to go with the prison officers, there's no other option there, and when they're ready go with them. Thank you. I thank counsel for their assistance. Mr Morrison, will you be back on Monday week ‑ ‑ ‑
98MR MORRISON: It's hoped that it will be Mr Wilson, however, it will be me if not.
99HIS HONOUR: Yes, so that will be for Mr Catini's sentence indication, Mr Paron, if we've got an interpreter and Mr Tumino for sentence. Where is Mr Molla up to?
100MR MORRISON: Your Honour, Mr Molla is currently proceeding to trial, the prosecution have to file the trial indictment and opening on 1 September and then we are back for directions hearing I think in October. But unfortunately I understand that his matters will not resolve prior to a trial.
101HIS HONOUR: Who's managing it, just in the digital registrar's list?
102MR MORRISON: Yes, Your Honour.
103HIS HONOUR: I might elevate it to my court, because if he pleads he'll plea in front of me, if he has a trial he might have it in front of me.
104MR MORRISON: Yes, Your Honour.
105HIS HONOUR: Is he just facing charges related to the three properties or two or ‑ ‑ ‑
106MR MORRISON: It's the same two properties. The indictment is still being finalised but certainly it just relates to the conduct that's already before you.
107HIS HONOUR: Yes, okay. Thanks.
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