Director of Public Prosecutions v Beqa
[2012] VCC 522
•27 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-01968
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEKIM BEQA |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2012 | |
DATE OF SENTENCE: | 27 April 2012 | |
CASE MAY BE CITED AS: | DPP v Beqa | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 522 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr S. Norton (Plea) Mr J. Behan (Sentence) | Robert Stary Lawyers |
HIS HONOUR:
1 Mr Beqa, you have pleaded guilty to an indictment containing one charge of cultivation of a commercial quantity of cannabis, for which the maximum penalty is 25 years’ imprisonment, one charge of theft, for which the maximum penalty is 10 years’ imprisonment, and one charge of trafficking in a drug of dependence, for which the maximum penalty is 15 years’ imprisonment.
2 The circumstances of those offences were opened and discussed during the course of the plea. To a significant extent, those circumstances are contained in the typed prosecution opening which was tendered as Exhibit A on the plea.
3 In approximately October 2010, you entered into an arrangement with a neighbour to rent his premises at 3 Balmoral Street in Laverton. That arrangement required you to transfer the monthly rent of $1,200 into his bank account.
4 At approximately 9:50 pm on Thursday 16 June 2011, police observed you attend the address at 5 Balmoral Street in Laverton.
5 At approximately 10:40 am on Friday 24 June 2011, members of the Drug Task Force attended at the addresses of 3 and 5 Balmoral Street in Laverton.
6 Initially, they knocked on the front and rear doors of 3 Balmoral Street. When no one replied to their knocks, they forced entry to those premises. They found a Ms Tahiri in the kitchen area of those premises. Through an Albanian interpreter, she told police that she knew nothing about any cannabis at that address.
7 When police forced entry to the rooms located at the rear of the house, they discovered that cannabis was being hydroponically grown. Three rooms were dedicated to the cultivation of cannabis plants. In total, there were 24 plants which had a combined weight of 76.92 kilograms.
8 Police also knocked on the front door of the neighbouring premises at 5 Balmoral Street. After receiving no answer, they forced entry to those premises. On searching those premises, they discovered that cannabis was being grown hydroponically in three of the rooms. Those rooms were dedicated to the cultivation of cannabis plants. In total, there were 24 plants which had a combined weight of just over 57 ½ kilograms.
9 Your cultivation of the plants in both houses forms the basis for the charge of cultivation of a commercial quantity of cannabis (Charge 1). That charge encompasses the cultivation of a total of 48 plants. Their total weight was just shy of 134 ½ kilograms. A commercial quantity of cannabis is relevantly defined as being 100 or more plants or a weight of at least 25 kilograms. In your case, the commercial threshold was exceeded due to the weight of the cannabis plants that you cultivated. Indeed, the weight of those plants was more than five times the statutory threshold for a commercial quantity, namely 25 kilograms.
10 In the first of the premises, police also located a total of 4.45 kilograms of dried cannabis. That cannabis was packaged in ten clear snap lock plastic bags, each of which contained approximately one pound of dried cannabis. You had obtained that cannabis by harvesting a previous crop that you had recently grown. Your possession for sale of that cannabis forms part of the basis for Charge 3 on the indictment, trafficking in a drug of dependence. The additional basis for that charge derives from an admission you made to the police when interviewed. In essence, you said that you had given a quantity of dried cannabis from the previously harvested crop to the person that had initially supplied you with the equipment you needed to grow the cannabis. In so doing, you expunged the debt of $5000 you owed to that supplier. It is clear that the total weight of the cannabis to which this charge relates far exceeded what is deemed to be a traffickable quantity of cannabis under the relevant legislation, namely 250 grams. If sold by the pound, that cannabis was worth between $3000 and $4000 per pound.
11 Police seized numerous items associated with the cannabis cultivation from both addresses. They included fertiliser material, shrouds, light globes, transformers and air/charcoal filters. Police also seized two digital scales.
12 The charge of theft, charge 2, relates to the theft of electricity. An illegal electricity bypass was operating in both houses. At 3 Balmoral Street, the illegal connection was located in the roof, while at 5 Balmoral Street, it was located in a wall cavity near the meter box. The theft occurred over a 3 ½ month period; the same period which is referable to Charge 1. The stolen electricity was used to power the hydroponic equipment used to cultivate the cannabis plants the subject of Charge 1.
13 At approximately 11:20 am, police arrested you in a vehicle which was being driven in the area. Upon intercepting that vehicle, you and another person were located in that vehicle. Police seized various ANZ bank receipts, a Hobson Bay Council Permit in the name of Hysen Beqa for 5 Balmoral Street in Laverton, keys to 5 Balmoral Street, plant nutrients, a set of scales, thermal controllers, a drawing of an electrical house plan, and electrical power boards from the vehicle. You were arrested and conveyed to the Altona North Police Station.
14 You were then interviewed. You co-operated with the police and made full admissions to the offences. You told the police, among other things, the following:
- “I done it for a short time and I was gonna stop it, sort of, straight away. It’s a gambling problem I had… I met someone through the pub. He told me 'Why don’t you do that?' And that’s why I am here today.”;
- You were a marijuana user;
- You started cultivating approximately three months ago;
- 5 Balmoral Street was your father’s house;
- You set up the crop, including the bypass;
- You owed the person from the pub, ‘Joe’, $5000 for the equipment you bought to set up the crop;
- You had harvested another crop approximately three to four weeks ago at 5 Balmoral Street;
- You gave some of the harvested crop to Joe and Joe said you were then square for the $5000;
- “First, for my habit because it was costing me too much to buy it. And – and probably I thought if I can make some money, be honest, and return the money to my brother because he’s not aware of it. I took his money from his account”;
- When asked your reason for cultivating cannabis, you stated, “it’s gambling like I said, I don’t even – I didn’t even think because with my condition, the depression and mental illness and sometimes I can’t even think straight.”.
15 The objective circumstances of your offending are clearly very serious.
16 In relation to Charge 1, the cultivation occurred over a significant period, 3 ½ months, and at two separate premises. The combined weight of the 48 plants that you cultivated is testimony to the successful nature of your venture. At least in part, you were motivated by greed in offending as you did. I do not accept what you told the police to the effect that you were on the cusp of stopping when you were arrested. In that regard, I consider it to be significant that not all of the plants that police located were in an advanced stage of maturity. For example, 8 of the plants located in the second premises were obviously quite young as they had a combined weight of only 367.9 grams.
17 As for Charge 2, it must be noted that you personally set up the illegal bypasses in the first place. The resultant theft of electricity occurred over a significant period, approximately 3 ½ months. The value of that stolen electricity was substantial; totalling as it did $13,976.06.
18 In relation to Charge 3, while the total quantity of cannabis trafficked cannot be precisely quantified, it was clearly significant. The value of the cannabis you provided to the supplier of your equipment was $5,000. Furthermore, on the date of your arrest, you were in possession of a substantial amount of dried cannabis for the purpose of future sale. Whilst allowing for the possibility that you may have used a small amount of that 4.45 kilograms yourself, it is clear that you were intending to sell the vast bulk of it. As you told police, you were intending to make some money by doing so. That cannabis had a retail value of at least $30,000 if sold as packaged, that is, by the pound.
19 You have a very limited prior criminal history. The criminal record filed with this Court reveals that you appeared in this court on 24 February 2003 in relation to a Commonwealth charge of without permission move tobacco leaf. On that occasion you were released on a 12 month recognisance release order in the sum of $2000. I have been told and accept that your offending on that occasion related to your involvement in the unlawful movement of tobacco, known colloquially as “chop chop”. Given the nature of that earlier offending, it has some relevance. However, the scale of that earlier offending would appear to have been at a relatively low level given the nature of the penalty imposed. Furthermore, it is now in excess of 9 years since you were sentenced in respect of that matter. In those circumstances, and given your age, your criminal record while relevant, is of minimal significance to my sentencing task.
20 I now turn to your personal circumstances, Mr Beqa.
21 You were 47 years old when you committed the current offences, and are now 48.
22 You were born in Kosovo in the former Yugoslav Republic on 20 August 1963. Your family were of Albanian ethnic background and as such were subjected to prejudicial and unfair treatment meted out by the Serbian majority ethnic group in the former Yugoslavia. You were targeted as a political activist and both you and your family were threatened. You were also physically assaulted on a number of occasions.
23 You graduated from High School with excellent grades. You were conscripted into the Yugoslav defence forces and endured a year of humiliating and violent treatment. You abandoned your University studies in order to marry and settle in Australia.
24 You travelled to Australia in 1986. While here you met your future wife. You subsequently married and had three children together. Their ages range from 17 to 21. You ultimately obtained Australian citizenship.
25 While living here, you worked for some thirteen years for Hans Schmidt and Partners (a building company) until it went into liquidation. You then worked for another building company on a casual basis until you and a close friend opened a restaurant in St Kilda, in 1998. You and your business partner operated this restaurant for nearly three years and you spent most of that time working long hours, seven days a week. In the wake of the failure of that business, you found yourself in difficult financial circumstances and deteriorating health. You lost a significant some of money in 2004 after helping a friend in straightened financial circumstances. Between 2002 and 2005, you worked on a casual basis at a friend’s restaurant in Newport. Your friend developed terminal cancer and the restaurant had to be sold. You provided personal and financial assistance to his family and were devastated by his death.
26 Your medical history is referred to in the reports of both Dr Keane and Mr Mackinnon and I wont repeat it now. I have had regard to that history.
27 You provided a history to Mr Mackinnon in relation to your gambling activities. It is a problem that you have battled in the past few years. You mostly gambled at licensed premises in the western suburbs. After your arrest you first reduced and then ceased your gambling activities. You have not gambled since August of last year.
28 You are currently on a Disability Support Pension. You remain living at home with your wife and children. The family is in difficult financial circumstances. More recently, you have spent your time assisting your brother to build some units and visiting your elderly parents.
29 In the past, you have consulted your GP and a number of other health professionals in relation to your depression and anxiety.
30 In the case of the GP Dr Keane, he notes that you have a longstanding history of depression and anxiety, for which there has been two previous hospital admissions.
31 The psychiatrist, Dr Rajan Thomas, saw you at his clinic on one occasion in mid 2011. You reported to him that you had been feeling depressed for about 3 years. You presented to Dr Thomas as someone with low mood and anxious. He concluded that you had a major depressive disorder for which you required further psychiatric assessment and medication. He prescribed anti-depressant medication, but it would appear that you did not consult Dr Thomas again after that date.
32 As part of your bail conditions, you were required to complete the Court Integrated Services Program (CISP). Your progress while on that program is outlined in the various reports of your case manager, Claire Marriot. As she notes, you performed well and demonstrated appropriate remorse for your offending. As part of the program you were required to attend counselling sessions at Western Gamblers Help, where you saw among others, a Mr Butterworth, and to consult the psychologist Mr Mackinnon. As Ms Marriot notes in her final report, you had successfully completed CISP by 17 October 2011.
33 Ian MacKinnon is a forensic and consultant psychologist. He initially assessed you on 14 July 2011. Since that time, he has seen you on a further 15 occasions. I have had regard to his report of 9 March 2012 and to his viva voce evidence when determining the appropriate sentence in your case.
34 Mr MacKinnon assessed you as having normal cognitive functioning and intelligence falling within the normal adult range. He considered that you were not suicidal but had been suffering from a Depressive Mood Disorder and a Generalised Anxiety Disorder since 2008, and possibly much longer. In his view, you continue to suffer from these psychological disorders today. Whilst you presented as being in an improved, moderately poor state of mental health in late 2011, the prospect of your court appearance has seen your psychological state worsen in 2012; you currently present as being extremely anxious and depressed.
35 To Mr MacKinnon, you presented as being overwhelmingly concerned with the adverse and distressing impact and consequences of your offences to your family. In his opinion, you have a genuine sense of shame and personal failure in regard to your offending. To his observation, you consistently expressed deep remorse and disgust at yourself for having involved yourself in cannabis cultivation and trafficking. As he put it, you do not simply feel remorse, but you also suffer a palpable degree of guilt in relation to your criminal offending. He described the level of your remorse, guilt, shame and embarrassment as "exceptional".
36 He concluded that you do not possess an antisocial or criminal personality, and that your offending behaviour in 2011 was very much out of character. He noted that you committed these offences during a period in your life when you were in financial difficulties and you were not well enough to work full time. He is of the opinion that your poor mental state of health degraded your judgement to the extent that you made poor decisions and entered into criminal activities previously foreign to you. At the relevant time, he considered you to have had a gambling problem as well as a mild substance abuse problem.
37 Mr MacKinnon is of the opinion that if you were incarcerated your already poor state of health is likely to deteriorate further. As you have not previously served a term of imprisonment, you will not adapt easily to being housed with habitual criminals. You are likely to become highly distressed in custody, largely driven by your concerns for your family and the sense that society now permanently regards you as a serious criminal.
38 There are a number of other matters to which I must have regard when sentencing you.
39 Following your arrest, you co-operated with the investigating police officers and made significant admissions during the record of interview.
40 You then pleaded guilty to these charges at the earliest reasonable opportunity; at the committal mention hearing on 19 October 2011. By your plea you have facilitated the course of justice and saved the community the cost and time of a trial. I am also satisfied that the course you have chosen to take is demonstrative of your remorse. You are entitled to, and will receive, a significant discount in your sentence on account of your plea.
41 I am satisfied that you have demonstrated genuine remorse for your offending. Your remorse has been readily apparent to Mr MacKinnon and Ms Marriot, as well as to your wife and niece, and to the other character referees that were called to give evidence at the plea.
42 The current offending would appear to have been out of character. That was the conclusion expressed by the psychologist Mr MacKinnon, as well as by a number of your relatives and personal referees. Without exception, they described you as a kind and generous person. Those that previously knew you were shocked when they learnt about the nature of these charges. Your very limited criminal history supports such a conclusion.
43 You are someone who has selflessly sought to assist others in need, particularly Kosovar refugees. Your voluntary work assisting those refugees has been undertaken over many years and has been noted by your referees. You have also worked in a voluntary capacity in community radio with a view to providing assistance to those in the Albanian community.
44 I accept that you have developed some insight into the harmful effects of cannabis. You no longer use cannabis or gamble.
45 Your gambling activities provide some explanation for your offending and were only relied on in that context. As is made clear in the letter from Ian Butterworth, a counsellor and psychologist who works in the area of problem gambling, you attended a number of counselling sessions between 31 August 2011 and 5 March 2012. In his opinion, you fully engaged in that counselling process. He noted that you are motivated to continue with that counselling process and to abstain from gambling in the future.
46 To date, you have enjoyed strong support from your family and others in the community. I have no doubt that their support will be of continuing assistance to you in the future.
47 Since you were charged, you have already undertaken a number of steps towards rehabilitation. That is very much to your credit. I have had regard to those efforts, as well as to your age, very limited criminal history, and personal circumstances, including your strong feelings of guilt and shame for what you did, and concluded that your prospects of rehabilitation are very good indeed. To the extent that I am permitted, I propose to sentence you in a manner that is designed to maximise those prospects of rehabilitation.
48 You suffer from a number of medical ailments, although none of those are life threatening. Your medical history and medication regime is helpfully outlined by Dr Keane in his letters of 5 July 2011 and 14 March 2012. He also refers to your long history of depression and anxiety, for which you have been prescribed medication. He reaches a similar conclusion to Mr MacKinnon in terms of the likely adverse effect that a sentence of imprisonment would have on your mental health. He also notes that it is also possible that such a sentence could adversely impact on your physical health.
49 You will clearly find the experience of having to serve an immediate term of imprisonment a very difficult one. You are a man of mature years who has no previous experience with the correctional system outside of a brief period spent on remand for these offences. You are depressed and anxious. For a number of reasons you will be vulnerable in a custodial setting. For these reasons, I am satisfied that you will find the service of any sentence more onerous than many other prisoners. Based on the evidence before me, I am also satisfied that there is a serious risk that imprisonment will have an adverse effect on your mental health. Those considerations are relevant to any consideration of what represents a just punishment in your case.
50 Your counsel also sought to rely on your mental health for the purpose of reducing your moral culpability and the weight to be attributed to deterrence, both general and specific. He points to the fact that you suffered from depression and anxiety during the period of your offending, as well as presently. He relies in particular on Mr Mackinnon’s opinion that your psychological disorders contributed to your offending because they are likely to have degraded your judgement. I accept that that is so, but only to a point. The offences that you committed were carefully thought out and executed. You were very successful in the manner in which you carried out your criminal venture. It seems to me that any degradation to your judgement and reasoning would not have been to any significant degree.
51 Accordingly, I propose to view your moral culpability as being slightly reduced, and to ameliorate the weight I give to general and specific deterrence to a modest degree.
52 The nature and gravity of your offending means that general deterrence and denunciation must still play a significant role in my sentencing task. It is serious offending for which you must be justly punished. The community has a legitimate expectation that those persons who commit serious drug offences will face serious consequences if they are caught.
53 While still relevant, specific deterrence is of less significance as a sentencing consideration. I have no doubt that the time that you spent on remand and the prosecutorial process have already effected some measure of personal deterrence.
54 The circumstances of your offending are sufficiently serious in my view to warrant an immediate term of imprisonment. Your counsel did not suggest otherwise. Whilst acknowledging the seriousness of these offences and the need for an immediate term of imprisonment, Mr Norton sought a sentence that reflected the many matters in mitigation upon which you could rely, and a disparate non-parole period.
55 The sentences that I have decided to impose on you are considerably less than I would have otherwise imposed because of the various matters in mitigation to which I have referred. In combination, those matters require this court to extend a considerable measure of leniency to you, in particular when it comes to the fixing of the non-parole period.
56 Mr Beqa, I have balanced and weighed the various sentencing considerations in your case as best I can.
57 You are hereby sentenced to the following terms of imprisonment.
58 On Charge 1, cultivation of a commercial quantity of cannabis, 3 years.
59 On Charge 2, theft, 9 months
60 On Charge 3, trafficking in a drug of dependence, 18 months.
61 I order that 9 months of the sentence imposed for Charge 3 and 3 months of the sentence imposed for Charge 2 be served cumulatively with the base sentence of 3 years imposed for Charge 1 and on each other, making a total effective sentence of 4 years. In all the circumstances, I consider it appropriate to fix a relatively low non-parole period. I therefore fix a non-parole period of 2 years in respect of that total effective sentence.
62 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to these offences, I would have imposed a total effective sentence of 5 years with a non-parole period of 3 years
63 I direct that you have served a period of pre-sentence detention of 14 days in respect of this sentence and I further direct that that declaration and its details be entered in the records of this court.
64 I grant the Crown’s application for a Retention Order. Pursuant to section 464ZFB(1) of the Crimes Act 1958, I order that the forensic sample and any related material and information obtained pursuant to the informed consent that you gave on 24 June 2011, be retained for placement on the database. Having considered the seriousness of the circumstances of the offence, I am satisfied that, in all the circumstances, the making of the Order is justified for the following reasons: the seriousness of the circumstances of the offending warrant the Order, the making of the Order is not opposed and the granting of the Order is in the public interest.
65 Pursuant to s.77(1) of the Confiscation Act 1997, I grant the Crown’s application for a disposal order in relation to the cannabis and other items listed in the schedule attached to that order.
66 Pursuant to s.86 of the Sentencing Act 1991, I exercise my discretion in favour of making the compensation order sought by the Crown. You are therefore ordered to pay compensation in the sum of $15,992.38 to Origin Energy Ltd.
67 Counsel, are there any matters which either of you wish to raise in relation to the sentence or sentencing reasons?
68 MS HOGAN: No, Sir.
69 MR BEHAN: No, Your Honour.
70 HIS HONOUR: Mr Behan, I am minded to have noted as custody management issues the fact that this is your client's first term of imprisonment that he is being required to serve, that he has previously been diagnosed as suffering with depression and anxiety and a number of other medical conditions for which he requires medication. Are there any other matters to which you suggest reference should be made in that documentation?
71 MR BEHAN: No, Your Honour.
72 HIS HONOUR: Very well. I'll ensure that my associate, Mr Teo, notes those matters on the appropriate documentation.
73 MR BEHAN: I'm grateful, Your Honour.
74 MS HOGAN; If Your Honour pleases.
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