Director of Public Prosecutions v Al Garawi
[2019] VCC 1496
•13 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 19-00859
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMED AL GARAWI |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2019 | |
DATE OF SENTENCE: | 13 September 2019 | |
CASE MAY BE CITED AS: | DPP v Al Garawi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1496 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - one charge of cultivation of a narcotic plant, namely cannabis - one charge of theft - electrical bypass - total weight of cannabis 27.31 kilograms - no prior criminal record - no intention to cultivate a commercial quantity - charge is one of simple cultivation - offender was as a crop sitter - offender had no part in the organisation or ownership of the crop.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Crimes Act 1958, Sentencing Act 1991.
Cases Cited:
Sentence: Community correction order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Harrison | Office of Public Prosecutions |
| For the Accused | Mr J Mortley Mr R Yeboah | Mulbridge Lawyers |
HIS HONOUR:
Introduction
Ahmed Al Garawi, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment. You have also pleaded guilty to one charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.
You have no prior Criminal Record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows. At approximately 12:20 pm on Monday, 17 December 2018 you were observed by police exiting from the front door of 171 Milleara Road, Keilor East. You were approached by police and they requested that you allow them to look inside the property as they believed that cannabis was growing within it.
You opened the front door and allowed police into the property. Once inside, police members were able to smell a strong scent of cannabis. Police asked you to open a closed door to view further parts of the house, however were told they would need a warrant to do so. You and the police members exited the property and police advised that they would be obtaining a warrant for the house. You then admitted to police that you were cultivating cannabis within the property and led them back inside, opened the closed door for police and showed them the hydroponic cannabis cultivation.
You and the police returned to the front yard, where you were arrested. While awaiting for other officers to assist in the search, you advised police present that there was an electrical bypass installed in the front left side of the premises. During the later search of the premises police found cannabis plants and hydroponic equipment in two rooms as well as a bathroom which had been converted for use as an irrigation system.
In room 1 of the premises, police located 18 cannabis plants. These plants were growing in a hydroponic system, being overhead lighting, an extractor fan system and pots connected together with a water supply. In room 2 of the premises, police located a further 18 cannabis plants. These plants were also growing in a hydroponic system, being overhead lighting, an extractor fan system and pots connected together with a water supply. The total weight of the cannabis plants found at the premises was 27.31 kilograms. It is these facts that relate to Charge 1, cultivation of a narcotic plant.
An electrical inspector was called to the house and an electrical bypass was found in the roof cavity of the property. The bypass allowed for electricity used for the lights and fans in the two grow rooms to bypass the meter connected to the house. It is these facts that relate to Charge 2, theft of electricity.
You were taken by police to Fawkner police station for interview. You answered the majority of questions put to you by making admissions to cultivating cannabis and otherwise responded with no comment. As part of your answers you stated:
·that 36 marijuana plants were growing in the house, being two rooms with nine pots and two plants in each;
·that your intention with the plants was to ‘just get some money’ for your study;
·that you were not sure when you started, but it was around the Melbourne Cup;
·that you gave the plants water and fertiliser so that they could flower; and
·that you took full responsibility for the plants, stating that you were the only one who would go there to tend the plants.
Nature and gravity of offending
I turn to the nature and gravity of the offending. The offence of cultivating cannabis is a serious offence which is reflected by the maximum penalty of 15 years imprisonment. In this instance the total number of plants found at your property was 36 plants with a total weight of 27.31 kilograms. While 25 kilograms amounts to a commercial quantity, the prosecution accepts that you had no intention to cultivate a commercial quantity and thus the charge is one of simple cultivation. Further, the prosecution accepts that you were essentially a ‘crop sitter’.
Two rooms and the bathroom of the house where you were living had been converted to accommodate the hydroponic set-up. While the set-up is not at the level of some forms of crop houses, where the layout of the house has been substantially modified, it is self-evident from viewing the photographs that the set-up was sophisticated involving the use of specialised equipment. That said I also accept that your role was simply to tend to the plants and that you had no part in the organisation or ownership of the crop.
I also accept that you agreed to the offer to use your property when you were in a desperate state in order to make some money when you were unemployed, having lost your business in circumstances that were out of your control.
Personal circumstances
You are 30 years of age and were 29 at the time of the offending. You were born in Iraq and your family is Shia Islamic. You have three siblings aged 25, 17, and 13. Your family currently resides in Iran.
You completed your primary and secondary schooling in Iraq and commenced studying a Bachelor of Psychology. Your father worked in politics until 2003 for the Badr Organisation. In 2009 your father fled with the family to Iran due to death threats as a result of not wanting to continue to support the Badr Organisation, from which he had been previously associated.
When your family fled to Iran you remained in Iraq, as you did not have a passport. You remained involved in your studies and became interested in politics. You came to the attention of a conservative religious party and, because of your belief system in wanting to separate religion from politics, you began to receive death threats. You went to live with your grandmother in Baghdad and applied for a passport to leave the country. As a result of your application, your location was then made known to the conservative religious party that had targeted you earlier and, as a response, they invaded your grandmother’s home.
You fled to Malaysia and remained there for three to six months. You attempted to pay people smugglers to move you to Switzerland; however, that did not occur. Ultimately you moved to Indonesia and relied on your family to send you money in order to survive. While in Indonesia you met some people that were planning to be smuggled to Australia and you joined them. In 2011 you joined a boat and were simply told that it was going to Australia, not knowing where you would arrive. During the trip the boat became damaged and ultimately you were rescued by the Australian Navy and taken to Christmas Island. You spent 11 months in immigration detention. You then received notification that you had been accepted as a refugee and you obtained permanent Australian residency.
In February 2012 you were flown to Perth. From there you immediately moved to Melbourne and studied English for three months at the AMES Settlement in Footscray. Following that study you were employed as a community guide for refugees, remaining in that employment for 18 months before the government funding for that role was withdrawn.
In 2014 you operated an after-school care business from your home for the children of immigrants and refugees. During that time you volunteered at a family day care centre to learn office administration. In 2016 you purchased a family day care centre for $80,000, having loaned the money from your then girlfriend. In August 2017 you receive notice from the Department of education that in 2013, prior to you owning the business, the company had illegally over claimed government grants in the amount of $960,000. You attempted to negotiate the repayments; however, in the end you lost the business and as a result had to close it.
In 2018 you were unemployed and in a desperate state having lost the business that you had worked hard to set up. You were told from a fellow refugee that you had met at Christmas Island that you could be paid $5,000 if you grew some plants. The hydroponic system was set up in your house and your role was to tend and water the plants. Within a relatively short time police attended the house and you were charged with these offences.
Since your arrest you have attempted to obtain further work as an Uber driver; however, you failed the accreditation process due to the pending charges. You have attempted to find other work however you remain unemployed.
You commenced counselling with Dr Qusai Hussain, psychologist, and have attended nine counselling sessions with him. In the initial stages when you saw him in July of this year, it was his opinion as a result of conducting psychometric testing and assessing you that you suffer from extremely severe depression and anxiety.
You also suffer a number of physical health issues including that from the age of 13 you have being diagnosed with polycystic kidney disease, which has the effect of causing you to need to urinate on an hourly basis, greatly impacting on your quality of life and your sleep. The condition is not curable and you will require a transplant when your kidneys ultimately fail. You also suffer severely from allergies and as such are required to have regular injections to combat your allergic reactions to substances such as pollens.
Your goal is to further your education and to study biomedicine at La Trobe University once these matters have been concluded. I turn to sentencing considerations.
Sentencing considerations
First and foremost I take into account your plea of guilty in this matter. This matter resolved prior to the first committal mention and clearly it is a plea entered at the earliest available opportunity. I further take into account the fact that once the police had conveyed to you that they suspected that cannabis was growing in the house, you were cooperative, made admissions at the scene and advised the police of the electrical bypass. As such your cooperation and subsequent early plea demonstrate your acceptance of responsibility and your willingness to facilitate the course of justice. You plea has also therefore saved the expense and time of a trial.
I also take into account your difficulties experienced over the last 10 years beginning when you and your family were at great risk in your country of birth, Iraq. Once your family had fled, you continued to suffer threats and ultimately you fled Iraq and spent some two years of uncertainty, including putting your life at risk at the hands of people smugglers, 11 months at a detention centre before ultimately being recognised as a refugee and obtaining permanent residency in Australia.
You made a genuine effort to educate yourself and perhaps naively you entered into a business that failed as a result of negligence by the previous owners of the business. It was in that circumstance that you were tempted by the offer to assist in the cultivation of cannabis. You are otherwise a man of good character. You have no prior criminal history and you have taken full responsibility for your conduct. I also take into account that you have a number of physical and psychological issues to grapple with and you have no family support in Australia.
General deterrence is of course a prominent sentencing consideration and a message needs to be sent to others in your position who may be tempted to engage in the cultivation of cannabis for sale. Specific deterrence in my view need not be given much weight in this instance. You have no prior criminal history and I have already accepted that you were in this instance a crop sitter. Further, there is no evidence of your involvement in the set up or ownership of the equipment or cannabis. In all the circumstances I am satisfied that you are a low risk of reoffending.
As to your prospects of rehabilitation, in my view they are able to be assessed a very strong. For the reasons noted above in relation to specific deterrence, your involvement in this offence was aberrant and ultimately a choice made by you when in desperate circumstances.
I had you assessed for a community correction order. You have been assessed as suitable and as a low risk of reoffending. Although you do suffer some physical and psychological conditions, the assessor does not recommend any conditions for treatment or rehabilitation for two reasons. First, as you are a low risk of recidivism, the accepted experience is that less intervention is more effective in maintaining that low risk. Secondly, none of your physical or psychological health issues were a precursor to your offending. Further, you have of your own volition engaged in a sustained period of counselling with Dr Hussain and are encouraged to continue.
Sentence
Mr Al Garawi, please stand.
Ahmed Al Garawi, on Charge 1, cultivate a narcotic plant, and Charge 2, theft, you will be convicted and placed on a community correction order for a period of 18 months. In addition to the core conditions of the order you will be required to complete 150 hours of community work over the period of the order.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment together with a community correction order.
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