Director of Public Prosecutions v Al-Jinavo

[2018] VCC 1654

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01072

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIDAL AL-JINAVO

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2018
DATE OF SENTENCE:	25 September 2018
CASE MAY BE CITED AS:	DPP v Al-Jinavo
MEDIUM NEUTRAL CITATION:	[2018] VCC 1654

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Cultivate commercial quantity narcotic plant (Cannabis) – Theft – Owner and operator of crop house but not part of drug syndicate – Dated criminal history – Traumatic childhood background

Legislation Cited: Sentencing Act 1991 (Vic)

Sentence:Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with non-parole period of 2 years’ imprisonment – 204 days pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Forensic Sample and Disposal orders

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Overend (Plea) Ms K. Richter (Sentence)	Solicitor for Public Prosecutions
For the Accused	Ms I. Ristivojevic	TT Law Group

HER HONOUR: 

1Vidal Al Jinavo, you have pleaded guilty to cultivation of a commercial quantity of a narcotic plant (Charge 1) and to theft (Charge 2).

2The first mentioned offence has a maximum penalty of 25 years' imprisonment and theft has a maximum penalty of ten years' imprisonment.

3The maximum penalties reflect the seriousness with which Parliament regards these offences.

4You were 34 at the time of the offending and you are now 35.

5A property in Glenroy had been rented in your name.

6On 5 March 2018, police executed a search warrant at this address.  They knocked on the front door and you opened it and you were then arrested.

7In the course of the search of the premises, police found a total of 20 cannabis plants growing in two bedrooms, which weighed a total of 102.55 kilograms.

8There were also a total of 58 cannabis plant seedlings growing in tubs on the kitchen floor.

9The total weight of the cannabis plants, including seedlings, which forms the basis for Charge 1, is 103.06 kilograms.

10A Ziploc bag on the kitchen bench contained 0.9 grams of dried cannabis.  I understand that the evidence in respect of the dried cannabis was provided by the prosecution as context evidence only and has not been factored in when alleging commercial quantity.

11On a wall in the kitchen/dining area were twenty transformers and a power box controlled by automatic timers, and in a cupboard near the bathroom was an industrial scale extraction pipe.

12Police found a hydroponic system set up in the house, comprising of irrigation systems, grow lights and fans.

13There was also an electrical bypass in place, giving rise to Charge 2, that is theft of electricity.

14There was evidence that you were living at the premises and there were electricity bills in your name.

15On the same day, you took part in a record of interview where you gave no comment answers.

16You pleaded guilty at committal mention stage and the matter proceeded to this court by way of straight hand-up brief.

17You have been on remand since your arrest so you have been in custody now for over six months.

18Mr Al-Jinavo, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced.  Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

19The quantity of cannabis that you cultivated is significant.  The threshold for commercial quantity of cannabis is 25 kilograms or 100 plants.  Therefore, you cultivated over four times the commercial quantity, albeit that the bulk of the weight came from 20 plants.  As has been said repeatedly in these courts, drugs are a scourge on our community and contribute to a great deal of misery and dysfunction, not to mention criminal activity.  You were prepared to profit from your unlawful activity, apparently unconcerned for those it might impact on down the line.  However, I make it clear that I sentence you on the basis that there is no evidence that you had sold any of the cannabis which you were growing.  I also accept that the 0.9 grams found on the kitchen bench was not harvested product from your crop, but that you had bought this for your own personal use.

20You also saw fit to steal electricity in order to conceal what you were doing and in order to evade paying for the electricity, which you were using to help grow the crops.

21You were not a mere crop-sitter, although such a role is an important and serious one.  Your role exceeded this, as you were the owner and operator of the crop house.  On the other hand, I accept that you were not part of a drug syndicate or hierarchy; you were running your own show, exposing yourself to detection, rather than others.

22You have a criminal history which is somewhat dated for the most part and which has a degree of relevance to your current offending, but it is not overly relevant.  Your most recent prior matter was dealt with in the Broadmeadows Magistrates' Court and concerned drug possession charges which were dealt with by way of fine without conviction.  Before this, you had been dealt with for mostly dishonesty matters from time to time from 2000 onwards, with gaps of years between court appearances.  In the circumstances, I give your criminal history limited weight.

23I take into account your background, which was set out in detail by your counsel.

24You had a most difficult upbringing.

25You were born in a small village in Iraq, and your father was constantly violent toward your mother and toward you and your four siblings.  I was told that your father's conduct was culturally acceptable, so he had free reign in this regard.

26While living in Iraq, your family was financially comfortable, as your father was in the military.  He also had a senior position with a German construction company.

27During the Iraq/Iran conflict, his job was to help place mines in conflict zones.

28Your mother worked in an administrative position for the local council.

29You and your siblings were looked after by your extended family.

30As a young boy, you witnessed the war at close quarters, including seeing another young boy have his arm blown off after playing with an anti-tank shell.

31You and your family eventually fled the conflict, which was a most hazardous and traumatic experience in itself.  You saw dreadful things which have no doubt left their mark on you.  After crossing the border between Iraq and Turkey, your mother became separated from you for a time, resulting in a frantic search for her.

32Once reunited, you all spent the next two years in a refugee camp, which was an extremely harsh environment, involving exposure to hunger and other deprivations.  Sexual and physical assaults were a commonplace occurrence.  You revealed very recently that you were subjected to a sexual assault at the hands of a soldier whilst at the camp.  You were also terrorised and physically assaulted.

33As there was no school at the camp, you were unable to continue your primary school education which had commenced in Iraq.

34You eventually came to Australia and found adjustment to life here quite difficult, especially in view of the trauma and hardship you had suffered beforehand, and the loved ones you were forced to leave behind.

35For one to two years, you and your family lived in a hostel in Clayton, and you attended the local primary school.  When you started school here you had no English skills but you mastered English fairly quickly as you loved to read.

36I understand that your parents both found work in factories, and your mother went on to work as a cleaner, which she continues to do.

37You moved to the northern suburbs and you went to another primary school.  You went on to attend secondary school but, as I understand it, you were expelled after stealing money from other students' bags; the money was to pay for food and shoes that your family was in need of.  Your father assaulted you severely after you were expelled.  You went on to another school where you excelled, being placed in Year 9 at the age of 12 or 13.  You were studious and enjoyed school, but left when in Year 10 after forming a relationship with a girl.  You went on to full-time employment as a stonemason and, like your siblings, you handed over your income to your father to contribute to the household expenses.  You worked for the same family business for 11 years.

38You then went on to work for a business as a forklift driver, then taught yourself to be a metal cutter when a co-worker was away sick and this skill was needed.  You worked with this company until 2008, when you were made redundant.  In the ensuing years, you found work rather readily, in various capacities, until 2013, when you struggled to obtain full-time employment, relying on casual jobs here and there.

39You married in 2010, in an arranged marriage that you felt pressured by your family to undertake.  You had previously been in a 12 year relationship and had difficulty in letting go of this as well.  You continued the relationship whilst you were married.  After two and a half years you separated from your wife in order to pursue your relationship with your girlfriend.  However, your relationship with her deteriorated and you went back to your wife.

40You and your wife then moved out and away from your parent's home.  In 2014 you had your first child, and in 2016 you had your second child.  I was told that you became overwhelmed by your family responsibilities and you separated once more, moving to the house in Glenroy, which is where the offending took place.  I was told that you did not move to the house in Glenroy for the purpose of installing a crop house, that you had been there for a number of months and had no work, which resulted in you establishing the crop house.  I was also told that you have never wanted to accept social security payments but apparently preferred to cultivate cannabis as a way to raise money and to provide for your family.  I understand that you borrowed money in order to set up the crop house.

41While it might be the case that you were too proud to take social security money, it is a rather warped morality and logic that saw you engage in illegal activity in order to provide for your family.  Of course, the sense of obligation to provide for your family is an understandable and noble one, but to grow drugs in order to do so, is certainly not.

42In sentencing you, I have taken into account the character reference which was tendered on your behalf.  Mr Boutefeu, who has known you for many years, spoke very highly of you and of your devotion to your family, as well as your feelings of remorse.  I have also taken into account your letter to me which was read out by your counsel.  Your letter confirmed a number of matters which had been put to me by your counsel and expanded on some of these.  It also reflects your remorse in respect of your offending, although it seems to me that you have a way to go in respect of your insight as to the seriousness of your offending and how it had the potential to impact on others peoples' families.  However, I accept that gaol has been a salutary experience for you, and that you have resolved to live a law abiding life with your wife and children upon your release.

43In this regard, I was told that you and your wife are committed to one another and that you both wish to continue your relationship when you are released from gaol.  In the meantime, she and the children have visited you regularly and you have all grown more closely together.

44I have factored in that this is your first time in gaol, and that you have been experiencing symptoms of depression and anxiety, although there is no expert material before me.  However, I accept that this is the case and that you may well have been battling such symptoms for many years to varying degrees because of the various traumatic matters in your background, which really need to be addressed by you.  In this regard, I understand that you are seeking out some professional help whilst in custody and I hope that you continue to do so.

45You have good and solid family support.  Your parents, wife, and brother, Emaunel, were all in court at the plea hearing, as was Mr Boutefeu.  You also have work to go to when you are released, as you intend on embarking on an apprenticeship with Emanuel in his plumbing business.  Further, you have a solid work ethic.

46In all of the relevant circumstances, I assess your prospects of rehabilitation as good, and I need only place fairly minimal weight on specific deterrence and protection of the community.

47However, I must also give strong weight to general deterrence, as I have said, and also appropriate weight to punishment and denunciation.

48Your counsel accepted on your behalf that a sentence of imprisonment with a non-parole period was warranted in your case.  The prosecution also made this submission and directed me to a relevant provision of the Sentencing Act in this regard.

49Your counsel further submitted, that in view of the matters in mitigation, that a longer than usual parole period would be appropriate, and submitted that any sentence ought not be crushing.

50I accept your counsel's submissions in this regard and have done what I can to accommodate these, whilst also being mindful of recent Court of Appeal authority, which indicates that sentences for offending such as yours need to be higher than they were at an earlier point in time.

51I was given some guidance in respect of current sentencing practice, which is but one matter to which I must have regard.

52In the end, I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles and the weight that I have attached to these.

53Would you please stand up, Mr Al-Jinavo?

54You are convicted of the offences.

55I make the ancillary orders sought by the prosecution and which are consented to by you.

56That is, I make the disposal order sought and also forensic sample order, which requires you to have a swab of your saliva to be taken from your mouth.  I make this order because of the seriousness of the offending, because you consent to the order and because it is in the public interest to make the order.  I must warn you that if you do not co-operate with the authorities in the taking of the sample, then the authorised officer or officers may use reasonable force in order to obtain it.

57In relation to Charge 1, you are sentenced to four years' imprisonment. 

58In relation to Charge 2, you are sentenced to three months' imprisonment to be served concurrently with the sentence on Charge 1, producing a total effective sentence of four years' imprisonment.

59I direct that you serve two years before becoming eligible for parole.

60I declare that you have already served 204 days by way of pre-sentence detention, which will be deducted from the sentence that I have just imposed.

61If not for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years’ imprisonment.  Just take a seat for a moment please, sir.  Is there anything arising from those remarks?

62COUNSEL:  No, Your Honour.

63HER HONOUR:  All right.  Yes, thank you.  Yes, if Mr Al-Jinavo could please be removed?  Thank you.  Yes, thank you.  We will now adjourn.

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