DDP v Zalli

[2022] VCC 1088

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-01474

DIRECTOR OF PUBLIC PROSECUTIONS

v

PASHK ZALLI

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JUDGE:	Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2022
DATE OF SENTENCE:	15 July 2022
CASE MAY BE CITED AS:	DDP v Zalli
MEDIUM NEUTRAL CITATION:	[2022] VCC 1088

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Possession of drug of dependence (cannabis) – Not guilty plea – One of three co-offenders involved in sophisticated clandestine hydroponic cultivation – Plants weighed approximately 70kg – Relevant prior offending – Specific deterrence and protection of the community – No nexus between gambling addiction or self-medication with cannabis and offending – Delay – Older offender

Legislation Cited:      

Cases Cited:DPP v Gashi [2022] VCC 840; R v Zalli (Unreported, County Court of Victoria, Chief Judge Waldron, 17 February 2004); DPP v Mierdita, Martin [2012] VCC 1678

Sentence:                  Two years’ imprisonment with a non-parole period of 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Caruso	Office of Public Prosecutions
For the Accused	Mr M Page	Marshall Jovanovska Ralph

HER HONOUR:

1Pashk Zalli, on 26 May 2022, you were found guilty by a jury of one charge of possession of a drug of dependence, namely cannabis. That charge related to a cannabis crop that was discovered growing by police at a house in Taylors Lakes.

2You are one of three offenders who were charged in relation to cannabis crops being grown at that address. Your two co-offenders, Joe Conforto and Rasim Gashi, pleaded guilty to cultivation of the same cannabis crop, that is the one found by police, and which is the subject of your guilty verdict of possession. Each of Mr Conforto and Mr Gashi has already been sentenced and in Mr Gashi’s case, I was the sentencing Judge.

3When sentencing Mr Gashi,[1] I set out the general background and circumstances. Consistently with what I said then and as applicable to the charge of which the jury has found you guilty, I proceed on this basis.  

[1]DPP v Gashi [2022] VCC 840.

4On 23 August 2017, you were in a car being driven by your co-offender Mr Gashi down MacKenzie Close in Taylors Lakes. At the time that you drove in to MacKenzie Close, police were executing a search warrant at a house on that street where a large and sophisticated hydroponic cannabis crop had been found growing. MacKenzie Close is a quiet suburban street with some very alert occupants.

5Neighbours were watching the police activity and immediately recognised the car as connected with the house where the crop was growing.. As the car approached the house with the police cars outside, Mr Gashi tried to do a U‑turn but was intercepted and the two of you were arrested.

6The neighbours then identified you and Mr Gashi to police as people who they had seen coming to the house and engaged in activity which had alerted their suspicions over the previous months.

7Following arrest, you were interviewed. The answers you gave can best be described as evasive. You said that you had been picked up that day by Mr Gashi at Watergardens. He told you he had a friend who wanted to meet you, but you did not know why or who that friend was. You denied having any involvement in the cultivation of the cannabis at the house. When asked if you had been to the house previously, you said that you had been to a lot of houses, but you did not know if you had been to that one before, and when asked if you had ever been inside the house, you again said you were not sure.

8Police later interviewed the owner of the house, Mr Conforto, the co-offender. Although he initially denied any involvement with the crop, he ultimately acknowledged to police that he had been involved not only in the crop that was found when the warrant was executed, but in the cultivation of a number of previous crops in the house over the previous 12 months. He then made a statement detailing his involvement, Mr Gashi's and yours.

9You were charged with cultivation of cannabis (non-commercial quantity) in respect of a crop that Mr Conforto said the three of you had been involved in, and which had been harvested earlier in 2017, cultivation of a commercial quantity of cannabis in respect of the crop that was under cultivation at the time of the execution of the warrant, and in the alternative, in respect of each of the two crops that Mr Conforto had said you had been involved in, you were charged with possession of cannabis.

10Whilst the crop that the police found at the time of the execution of the warrant was immature, it already well exceeded by weight the commercial quantity for cultivation of cannabis. In net weight terms, excluding roots, it weighed just over 70 kilograms, and a commercial quantity is not less than 25 kilograms. There were just under 100 plants altogether at various stages of maturity and 100 plants is the alternative threshold for a commercial quantity.

11The hydroponic setup in the house was sophisticated. It involved, amongst other things, charcoal fans, extraction fans, water pumps, transformers for the supply of electricity, UV lights, chemicals used in the growing of the plants and plastic covering over the walls and over the windows.

12During the execution of the search warrant, police found a face mask hanging in one of the grow rooms. Almost every room in the house had been converted to the growth of cannabis. DNA analysis conducted on the face mask showed that samples on both sides of the mask had DNA which was said to be 100 billion times more likely to have come from you than a random member of the Victorian community.

13Mr Conforto, consistently with what he told the police, and the undertaking he gave when being sentenced, gave evidence in your trial. He told the jury that Mr Gashi had brought you in to assist in the cultivation of cannabis that until then, he and Mr Gashi had been doing alone, that you were brought into it in late 2016 or early 2017, that you had been actively involved in the cultivation of the two crops which were the subject of the initial charges, and that the crop that was found by the police was pursuant to that agreement substantially larger and done with a more sophisticated hydroponic setup than the previous crops that Mr Conforto and Mr Gashi had been involved in.

14At your trial you maintained your denial of involvement. You contested Mr Conforto’s account of your involvement, and you put in issue the identification by the neighbours as one of the men who had been regularly seen visiting the house in 2017, in company with Mr Gashi, Mr Conforto or both of them.

15You were found not guilty of any involvement, as a cultivator or possessor, of the earlier crop, not guilty of cultivation of the crop that was present in the house when the warrant was executed, but guilty of possession of that crop.

16By its verdict, I accept that the jury was satisfied beyond reasonable doubt that you had a right to access that crop at MacKenzie Close. The charge of possession was a between dates charge, from 5 July 2017 to the date of the execution of the warrant, 23 August 2017.  That time frame covers the likely life cycle of the crop having regard to its maturity at the time of the execution of the warrant.  As you were arrested before entering the house on 23 August, it follows that the jury must have accepted the evidence of the neighbours that you were one of the men they had seen at the house over the time the crop was growing there, and rejected the possibility that there was an innocent explanation either for your presence on your way to the house that day and also for the presence of the face mask with your DNA on it, which had been found in one of the grow rooms. Given the size of the crop, and its immaturity, the jury must also have excluded the possibility that you were going to the house to buy some cannabis for your immediate personal consumption.

17The maximum penalty for possession of a drug of dependence in these circumstances is five years' imprisonment. Unsurprisingly, having regard to the sophistication of the hydroponic system, and the weight and quantity of the plants being grown, the defence did not contend that your possession of the crop was for a purpose other than trafficking. Therefore the lesser penalty that otherwise might apply does not apply here.

18Consistently with your denials of involvement during the trial, no explanation for your involvement or role was advanced by your counsel on the plea and so I proceed to sentence against the background facts and circumstances that I have outlined.

19On the plea, the prosecution submitted that the circumstances established that the objective seriousness of this offence of possession was high. Of course, as was emphasised by both prosecution and defence, I must sentence you for possession, that is for having a right to access that large crop, with its sophisticated hydroponic system, established in many rooms of a house which was used solely for the purpose of housing and growing the crop; a house to which you had no connection other than through the presence of the crop. Apart from emphasising the need to sentence for possession, not cultivation, and acknowledging that it was not put that the possession was for a purpose other than trafficking, nothing was put by Mr Page to contest the prosecution's submission that the objective gravity was high. That was a sensible and realistic position to take.

20Although possession is the lesser alternative to the cultivation charge of which you were found not guilty, it is worth noting, consistently with the verdict, that you were clearly not a crop sitter or a horticultural labourer.

21I am satisfied that having a right to access a crop of that size, established and being grown in the manner it was, not as a cultivator, but as a person entitled to access and exercise control over it for a purpose that excludes one not related to trafficking, does put this offence of possession at a high level of objective gravity.

22It is clear therefore that subject to considerations personal to you, denunciation, deterrence and just punishment loom large. There are sound reasons why cultivation and possession of cannabis are criminal offences. The harm that flows from the cultivation of an illicit substance, from possession of an illicit substance and from its distribution into the community is well known.  No matter what personal views people may hold about the harm that cannabis causes or the right of people to make their own choice, participation in this illegal activity by possession of cannabis is a criminal offence and everybody in this community is obliged to obey the law.

23In your case specific deterrence also carries weight. You have twice before been sentenced to terms of imprisonment for cultivation of cannabis. The first time was in 2004, when you pleaded guilty to cultivating a commercial quantity of cannabis and theft of electricity.  On that occasion you were sentenced to a total effective sentence of 2 years and 1 month with a non-parole period of 13 months. On that occasion, the sentencing judge,  Chief Judge Waldron said:[2]

'It seems that it is conceded that the cultivation in this case was for the purpose of sale and commercially motivated'.

[2]        R v Zalli (Unreported, County Court of Victoria, Chief Judge Waldron, 17 February 2004) [15].

24Chief Judge Waldron found at that stage, back in 2004, that your prospects for rehabilitation were good. You had no previous convictions and His Honour imposed what he described as a minimum sentence less than might otherwise have been appropriate because of your lack of previous convictions and what he found to be your good prospects for rehabilitation.

25In 2012 you pleaded guilty to one count of cultivating cannabis and one count of possession of an unregistered handgun. You were sentenced to a term of imprisonment of 1 year and 9 months, with a non-parole period of 12 months. His Honour Judge Smallwood in passing sentence on you on that occasion again noted that this offending related to a sophisticated hydroponic crop and as he said, 'The difficulty … is that you have done it before'.[3]

[3]        DPP v Mierdita, Martin [2012] VCC 1678 [5].

26His Honour said that that offending had to be regarded as serious and called for the application of general and specific deterrence as well as denunciation and punishment, and he noted that where one has a repeat offender of cultivation of cannabis for commercial purposes, the element of community protection meant that a custodial sentence was inevitable and must be of significant proportion. 

27Of your prospects for rehabilitation, His Honour Judge Smallwood said correctly that it was entirely up to you and your risk of re-offending depended on whether you rehabilitated.  He noted that concern when someone has done it before that they will do it again.

28Based on these comments, and the material before His Honour in 2012, your prospects for rehabilitation could not be put as any higher than 'guarded'.

29Although this is a charge of possession, not cultivation, both your previous convictions and this offence of possession, of which the jury found you guilty, relate to involvement in the cultivation or possession of substantial quantities of cannabis, as part of  a commercial or profit-making enterprise, where your role is not as a bit player or a lowly agricultural worker.

30What then was relied on in mitigation to temper the weight otherwise to be given to general and specific deterrence, denunciation and just punishment?

31Well, you are an older person.  You are now 64, and you were 59 at the time of the offending.  You are a father and a grandfather and you really are at a stage of your life where you should be home looking after your daughters, looking after your grandchildren and enjoying this next stage of your life, not still involved in cannabis in a commercial context.

32You came to Australia as a 20 year old migrant.  You are the middle child of a family of seven born and brought up in Peshkopia, a town in Albania.  Although your family was poor and life appeared to be hard, you completed your secondary schooling and you went to Tirana, the capital, and there embarked upon your first year at university studying linguistics.  You could not afford to stay on at university and at the end of your first year, you fled Albania. Ultimately, having travelled through some other European countries, spending nine months in a refugee camp in Austria you arrived in Australia in 1978 aged 20.  After your arrival you worked hard, initially labouring in an abattoir, then tyre fitting. You became a hospital orderly for some time, then became a baker and ultimately set up your own business.  You married, you had two daughters of whom you are very proud, you were running your own business and you were doing well enough to send your children to private school.  At the time that you were sentenced by His Honour Judge Smallwood your two daughters were both at secondary school and both doing very well.

33All of this looked like a classic migrant success story but as is so often the case there is more to it.  Your business failed, your marriage failed and you took to gambling at levels that caused concern to your family and to the courts before whom you appeared, although it appears you did not see it as a significant problem.

34You have not worked or been in meaningful lawful employment since, it would appear,  shortly before you were sentenced to that first term of imprisonment.

35Your daughters are now adults, both well-educated and they are parents themselves.  You obviously have a strong relationship with both of your daughters and with their babies.

36Very positive and powerful testimonials were provided by your daughters, the partner of one of them, and a longstanding friend and one of your daughters also gave oral evidence on the plea.

37I accept, as did both His Honour Chief Judge Waldron and His Honour Judge Smallwood, that you are, apart from your involvement in cannabis, a family man, generous, interested in many things and an interesting person. But as I was just saying to Mr Page before, you are a gambler and facing court, this court, for a third time, as a man now in his 60s for involvement in cultivation or possession of substantial cannabis crops, where the inescapable inference is for profit, it looks like this was part of the gambling.

38It is not put that there is any relationship between the gambling and involvement in this offending in the sense that your participation was motivated by a need to make money to pay off gambling debts. All that I think can be said is that you may again have gambled on not being caught when involving yourself in large quantities of cannabis, and for a third time, you have lost.

39That is why specific deterrence and protection of the community must weigh in the sentencing mix. It is clear again that your prospects for rehabilitation must be assessed as guarded. The two previous arrests, convictions and sentences of imprisonment, the love and support of your family, and a demonstrated capacity to engage in meaningful employment and support yourself from lawful means have not in the past deterred you. And as His Honour Judge Smallwood said, the means back in 2012 to rehabilitate yourself were in your hands. It was up to you and again, it would appear you have made a choice, gambled on not being caught or convicted. Again, you were caught, and convicted. You have lost this wager and you must pay the price.

40It was put on the initial plea that like your co-offenders you should be sentenced to a community correction order.  On the other hand, the prosecution submitted that no sentence other than one involving a term of imprisonment should be imposed although it conceded a combination sentence, that is a term of imprisonment, followed by a community correction order was within range.

41In addition to parity with your co-offenders, Mr Page relied initially on family hardship, and in particular the hardship to your daughter, who only days after the plea was due to undergo an already deferred significant surgical procedure.

42So far as the co-offenders' sentences are concerned, there are significant differences between their circumstances and yours.  Each of them of course pleaded guilty to a charge of cultivation.  The cultivation related to, what we were calling in the trial, the second crop, that is the crop that was found by the police at the time of the execution of the warrant in August of 2017.  Mr Conforto pleaded guilty very early and he gave an undertaking to give evidence against you and Mr Gashi.  He was like you and Mr Gashi, a man of mature years, but he had no previous convictions. His early plea and undertaking and the absence of prior convictions persuaded His Honour Judge Allen to release Mr Conforto on a community correction order for a period of three years.

43Mr Gashi, who like you, maintained his innocence from the time of charge up until almost the date of trial, ultimately pleaded guilty after seeking a sentence indication shortly before his trial was due to start. He had one, unrelated and minor previous conviction and could call in aid all the Covid related matters which operate to reduce the sentence otherwise appropriate.  So in addition to receiving the section 6AAA discount for pleading guilty, even at a late stage, the addition of the Covid-related factors call for a much more significant reduction in the sentence otherwise appropriate.  But most importantly, Mr Gashi's personal circumstances, or rather, those of his wife, warranted mercy.

44Your circumstances are distinguishable. You have the two significant related priors for cultivation of crops of cannabis, one of them a commercial quantity cultivation. Unlike Mr Conforto, you did not co-operate with the police or undertake to give evidence against your co-accused. And unlike each of Mr Conforto and Mr Gashi, you pleaded not guilty. Although you were convicted of a lesser charge, you do not receive as a result either the pre or post Covid guilty plea reductions that your co-offenders were entitled to.  Of course, you are not to be punished for pleading not guilty, that is your right, but the others got a significant sentencing benefit from doing so, which is not available to you.

45The material presented on the plea initially in relation to your daughter satisfied me that she would clearly face hardship and that would impact upon you if you are unable to provide assistance to her, as she underwent this long-planned and already once-deferred surgery.  I was satisfied that needed to be taken into account.  The nature and the severity of the hardship occasioned to your daughter, and the impact on you, whilst not to be devalued, was vastly different from and of a lower scale than the circumstances that Mr Gashi and his wife were in at the time I sentenced Mr Gashi.  So ultimately I decided that a compassionate and appropriate approach to minimise the hardship to your daughter and so to you was to adjourn your sentencing for a period of six weeks, so you could provide her with the assistance that she gave evidence she was hoping to, and indeed counting on receiving from you, as she underwent the surgery and the post-surgery recuperative period that was required.  I have been advised by Mr Page today that she has had the surgery, that she is on the road to recovery and that he no longer has the evidentiary foundation for relying on the hardship that he had advanced on the previous occasion.

46In that time of adjournment, you have also provided a report which was sent to your general practitioner detailing your initial assessment and treatment plan from Paris Gibson, a psychologist to whom you were referred in March of this year, and also a report from the forensic psychologist, Warren Simmons.

47The treating psychological report noted symptoms of depression, anxiety and poor adjustment, precipitated by what was described as increased focus and heightening of world issues, and reflectiveness on life. That, as I have already noted with Mr Page, is consistent with what your daughter had reported in her testimonial and also consistent with what you recounted to Mr Simmons.  The psychologist had recommended that you embark upon cognitive behaviour therapy weekly for about 30 weeks.  It is unclear whether that has commenced but I understand from what I was told on the last occasion it had.

48Mr Simmons noted that you reported using cannabis and Panadeine Forte for pain relief to treat joint pain and migraines and whilst he recommends referral to pain management, and notes a lack of motivation to give up cannabis, I note that self-medication with cannabis was not put as a motivating or mitigating factor in the offending. I note also that although you will most likely be unable to lawfully access cannabis or Panadeine Forte in custody, it is not suggested that you would be unable to access alternative and appropriate pain relief for the joint pain and migraine.

49Mr Simmons also recommended a neuropsychological assessment, to assess whether previously noted ischaemic brain changes had led to a decline in cognitive functioning in the past decade. Again, there is no suggestion that there is any connection between any decline in cognitive functioning and the commission of this offence, or any suggestion that a decline in cognitive functioning might bring any other Verdins considerations into play.

50Apart from opining that despite your two cannabis cultivation priors you do not manifest significant anti-social personality traits (although Mr Simmons did not appear to address the firearm possession charge in that context), it is of note that Mr Simmons does not identify any matters within his areas of expertise which would operate to reduce your moral culpability or otherwise mitigate the sentence. As I have also discussed with Mr Page this morning, there is nothing of concern in Mr Simmons' report that indicates more weight than I had already considered was appropriate to give to specific deterrence or to protection of the community.  In that sense it is, as I said to Mr Page, a reassuringly negative report.

51I take into account also the considerable delay in bringing this matter to its conclusion. It has been nearly five years since you were arrested. It took 12 months after arrest before charges were laid, and the time it took for a contested committal and committal to this Court for trial meant that a trial date was not given before the COVID-19 pandemic hit. There has been a two year delay in court processes by reason of COVID-19. That combination accounts for the five years it has taken to get to this point.  That is a very long time to have something hanging over one's head, and the sentence must be moderated accordingly.  None of that is your fault and I accept that the oppression of having the matter unresolved for that time is significant.

52I must also take into account the fact that if I impose a term of imprisonment, that imprisonment is more onerous because of Covid-related restrictions and they relate not only to less freedom to move around, less opportunity to participate in courses, more significantly perhaps fewer opportunities for family visits and that ever present fear of being unable to control one's own environment and therefore be more at risk of contracting COVID-19 than one might be in the broader community, where once can take one's precautions.  That does not mean, Mr Zalli, that even if you are careful you will not get it, but all those factors are significant additional factors that operate to either point to a sentence other than one of imprisonment, or if a term of imprisonment is to be imposed, to moderate the term taking that into account.

53Despite the sentences that were imposed on your co-accused, and the need, if not for strict parity, for proportionality between them, the differences that I have identified between your circumstances and theirs are such that in my view the circumstances are not directly comparable. I have come to view that in your case, particularly having regard to your two previous convictions, no sentence, other than one of imprisonment, is appropriate.  I am also of the view that a community correction order is inappropriate in your circumstances as a combination sentence.  As has previously been noted, your rehabilitation and your prospects for rehabilitation are up to you.  I do not consider that you are a vulnerable offender for whom supervision, mental health or drug and alcohol treatment, or participation in programs to address re-offending are necessary or appropriate in order to encourage rehabilitation.

54And although your family and others and courts have seen gambling as a problem, you do not. But more importantly, there is no evidence that it is causally connected with the offending. Given that it appears you have no desire to address it, it seems to be inappropriate to impose conditions relating to addressing your gambling as part of any sentencing order. It is for those reasons therefore that I have come to the view that no sentence other than one of imprisonment is appropriate and that as I do not consider a community correction order in combination with it appropriate, that the approach that I should follow is to impose a head sentence and fix a non-parole period.  Could you now please stand?

55Pashk Zalli, on the one charge of possession of a drug of dependence of which the jury found you guilty, you are convicted and sentenced to be imprisoned for a period of 2 years.  I fix a period of 12 months as the time that you must serve before being eligible for parole.

56I make the forfeiture and disposal orders sought.

57There is no pre-sentence detention, is there, Ms Caruso and Mr Page?

58MR PAGE:  No, Your Honour.

59HER HONOUR:  No.  Any other orders that are required to be made?

60MS CARUSO:  Not that I am aware of, Your Honour.  If there are, I will discuss with Mr Page before sending them through, but I believe everything is now finalised.

61HER HONOUR:  Thank you.  Do you agree with that, Mr Page?

62MR PAGE:  Yes.

63HER HONOUR:  Thank you.  Mr Zalli, I must remain on the Bench until you leave the Court but I will stay here for a short time so that you can say goodbye to your daughter.  You are not allowed to touch because of the custody and Covid protocols.

64ACCUSED:  I already did, Your Honour.

65HER HONOUR:  Pardon?

66ACCUSED:  I already did that, Your Honour, thanks.

67HER HONOUR:  All right, very well.  Well if you want to say goodbye again, I will let you do that.

68ACCUSED:  That is all good.

69HER HONOUR:  All right, thank you.  Could you remove Mr Zalli then please?

70ACCUSED:  Okay, thanks, Your Honour.

71HER HONOUR:  I hope we do not see you before a court again, Mr Zalli.  When you get out, spend your time with your daughters and your grandchildren, it is a much more fruitful way to spend your time.

72ACCUSED:  Well I been used Your Honour.

73HER HONOUR:  Thank you, Ms Caruso, thank you, Mr Page for your assistance during the trial and the plea and today.

74COUNSEL:  Your Honour pleases.

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