Director of Public Prosecutions v Burrniku

[2019] VCC 138

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01579

DIRECTOR OF PUBLIC PROSECUTIONS

V

XHEVDET BURRNIKU

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Burrniku
MEDIUM NEUTRAL CITATION:	[2019] VCC 138

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of theft (of electricity) – hydroponic crop but otherwise unsophisticated  - grown in offender’s own house – offender is wife’s carer – two young children – wife suffers permanent effects of serious illness – hardship – no exceptional circumstances – exercise of mercy discretion not open - anguish for offender due to wife’s hardship taken into account – good prospects for rehabilitation.

Cases Cited:Markovic v Pantalic v R [2010] VSCA 105; Pollard v R [2010] VSCA156; Hendricks v R [2014] VSCA 185

Sentence:      --- 7 months imprisonment with 12 month Community Correction Order

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	OPP
For the Accused	Mr L. Hartnett	Ellinghaus & Lindner

HER HONOUR:

1Xhevdet Burrniku, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of theft.  The maximum penalties for these offences are 25 years and ten years' imprisonment, respectively.

2(Discussion re Interpreter)

3Mr Interpreter, If there is something that Mr Burrniku does not seem to understand, please raise your hand and I will attend to that.

4Xhevdet Burrniku, It will be necessary for you to spend seven months in prison, but you will then be released on a Community Correction Order, and I will now explain my reasons for sentencing you in this way.

5Between 15 March and 15 May 2017 you grew a crop of cannabis in your house at 49 Clearwater Rise Parade in Truganina.

6When police attended on 15 May there were five rooms containing cannabis plants being grown hydroponically, with all the usual equipment necessary for it.  An electrical bypass system had been installed illegally.  Sixty-six cannabis plants were located, later found to weigh 51.77 kilograms in total.

7While police were in attendance you arrived at the premises and you were arrested.  You admitted owning the house and growing the crop, and when asked how many plants were in the house you answered,

"About - I'm not sure, a lot.  50, 50 to 60."

8You were granted bail on 18 May 2017 and later a trial was listed for
4 June 2018.  On 31 May 2018 you pleaded guilty and the plea hearing was listed for October.  I am not aware of the reason for the delay which has occurred since then, but perusal of the mention notes suggests difficulties with funding may have been the cause.

9The plea was described by your counsel, Mr Hartnett, as an early plea, but in fact it was only a few days before the trial was due to begin.  The delay was due to consideration as to whether you knew the size of the crop being grown.  There had been no committal and so none of the witnesses had to give evidence, and in that sense there was a utilitarian benefit of your plea, facilitating the progress of the case.  You are entitled to a discount on your sentence for having taken that course.  I also accept it as an indication of remorse.

10Your personal circumstances are that you are aged 35, a man with no prior convictions, living a stable life with your wife and two children.  You migrated to Australia in 2009 from Kosovo, which was part of the former Yugoslavia, after meeting your wife, an Australian citizen, when she was visiting Kosovo with her family.  You are now also an Australian citizen.  Your children are now aged seven and three.

11Your parents and a younger brother still live in Kosovo and are unaware of these charges.  Other siblings live in England and Belgium.  While on bail you were permitted to visit your parents as your mother had been ill, and security for your return was provided by your mother-in-law.

12Your education was interrupted by the war in Kosovo between 1998 and 1999, when schools were frequently closed and classes were conducted in the homes of teachers.  After leaving school you worked in a small carpentry factory and in Australia you worked on farms and as a tiler.

13In 2013 your wife was diagnosed with a serious brain infection,
HSV Encephalitis.  When she was admitted to hospital you were advised that she might not survive.  After several weeks of hospitalisation and treatment she was left with cognitive difficulties, including impaired speech and memory, and some physical deficits.  This was confirmed by Dr John Gall who provided a report, having examined and assessed your wife for the purposes of this hearing in September 2018.  She needs assistance with many aspects of daily living and lacks the confidence to care for her children without your assistance.

14Dr Gall stated that he agreed with your wife's own assessment that she needs this level of assistance, having been informed that you are her official carer.  Indeed, you are in receipt of a carer's pension.

15At some time during this period you and your family moved into rented premises in Tarneit and you bought the house in Truganina where you grew the crop.  Sometime after you were charged with these offences the family moved into that house to live there, where you have remained.

16You were assessed in September last year by the psychologist Mr Ian Joblin, to whom you gave an account of your drug use and the decision to grow cannabis.

17You began using cannabis during your wife's illness in the context of needing help to relax, partly owing to the demands placed on you in caring for the family and earning an income, but also because of residual anxiety stemming from your experiences in the war in Kosovo.  You intended the crop to provide you with the drug for your own use, and apart from the size of the crop there were no indications of trafficking or the intention to do so.

18As to your earlier background, you explained to Mr Joblin that when the population of Kosovo was threatened by destruction your father took the family into the hills where you would live in a tent until it was safe to return.  You were exposed to distressing events, such as the death of friends and the destruction of homes, and although Mr Joblin did not diagnose any disorder such as post-traumatic stress disorder, he observed several symptoms consistent with it, such as recurrent, intrusive and distressing recollections, hypervigilance, a restricted range of affects, and strong attempts to avoid activities or situations that would arose recollections of traumatic events[1].

[1]Joblin report p.4

19Mr Joblin noted that you do not have an anti-social personality and you have good insight into the inappropriate nature of your behaviour.   You have had counselling and you are now drug free, recognising that your psychological difficulties must be addressed appropriately rather than through drug use.

20Soon after your arrest you engaged with therapy to address this problem and you were released on bail under the supervision of Ms Denise Abadee, who is the director of residential and community programs and a very experienced drug counsellor.  You continued to see her weekly for six months, subject to regular urinalyses and remaining drug free and you are still in contact with her.

21Clearly your rehabilitation so far has been successful and the indications for the future are positive.  That is an important part of the sentencing process because it indicates that there was a much reduced focus on specific deterrence and the need for the protection of the community.

22The need for the sentence to reflect the importance of general deterrence, however, must be empathised in order that others tempted to offend in this way are deterred by the prospect of a prison sentence.

23As to the gravity of the offending in this case, despite the size of the crop and the mechanics involved in it, it was an unsophisticated enterprise, evidenced in the use of your own house, which of course will now be subject to forfeiture by the Crown.

24You have understood that you are facing a prison sentence, that your parents-in-law will have to step in to help your wife and that life without your help will be difficult for her and the children.  I understand that your wife will have the assistance of her parents so she will not be entirely alone.

25Whilst hardship for them is not a ground for leniency unless there are exceptional circumstances, the anguish that you will experience in prison, knowing of their hardship, can be.  Even in the circumstances of this case, where the illness and its consequences are both relatively unusual, with permanent and serious incapacitating effects, the very high bar of exceptional circumstances is not met[2].  Accordingly, the exercise of the discretion for mercy is not open.

[2]I was referred to the decisions of Markovic v Pantalic v R [2010] VSCA 105; Pollard v R [2010] VSCA156

26An additional fact relevant to sentencing relates to the likely forfeiture of the house that you own that was used for the crop and in which you and the family live.  This was raised by Mr Hartnett in his submissions, but I heard no evidence as to whether your wife is a joint owner, the value of your equity in the property or any other relevant matter.  However, according to the authorities it is a matter to be taken into account, particularly as the forfeiture of the house will necessitate rental of another house for the family[3].

[3] Hendricks v R [2014] VSCA 185

27Despite the lack of exceptional circumstances, the anguish and therefore hardship that you are likely to experience in prison because of the family's difficult circumstances can be taken into account.  In this case it has the effect of mitigating substantially the sentence I would impose.

28The sentencing submission of your counsel was that after 21 months on bail, with no further offending and strong evidence of rehabilitation there is no necessity for a prison term to be imposed.

29The prosecution submission was that a prison term combined with a Community Correction Order was appropriate.

30I have had regard to a range of sentences for similar offending, which confirm the difficulty in comparing such cases, because of the differences inherent in the circumstances of both the offending and the offender.

31My conclusion is that general deterrence demands a prison sentence, but in the circumstances of this case it can be of short duration and a Community Correction Order will provide for additional punishment and deterrence.

32Would you stand now please, Mr Burrniku.

33I sentence you to six months' imprisonment for the charge of cultivating a narcotic plant, and two months for the charge of theft.  One month of that sentence will be served in cumulation upon the longer sentence, resulting in a total effective sentence of seven months.

34On completion of the sentence you will commence to serve a Community Correction Order, lasting for 12 months from the date of your release.  It will apply to both the charges.  You will be under supervision and you must have treatment for any mental health problems and for drug abuse.  Unpaid community work will not be necessary, given that you will have already served a prison sentence and it will be importance for you to resume your role as your wife's carer and consequently the carer of the children as well.

35If you had pleaded not guilty I would have sentenced you to 12 months' imprisonment with the same Community Correction Order.

36Now the details of the where to go and what to do once you are on the Community Correction Order, Mr Burrniku, will be apparent to you from the form that you will be asked to sign shortly.  But basically you will be asked to report to Werribee corrections office within two days of your release.

37The prosecution seeks an order for the obtaining of a forensic sample of saliva.  I have not heard if that is opposed or not, Mr Hartnett?

38MR HARTNETT:  No.

39HER HONOUR:  Not opposed?

40MR HARTNETT:  No.

41HER HONOUR:  Mr Burrniku, that means that the police will obtain a sample of saliva from you.  They have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

42Orders are also sought for the disposable of cannabis samples and for the payment of compensation to Energy Australia for the theft of the electricity, which is valued at $6,666.87.  Any opposition to those orders, Mr Hartnett?

43MR HARTNETT:  No, Your Honour, no.

44HER HONOUR:  I make those orders as well.  Now, Mr Hartnett, my associate's got the CCO there.  Do you want to have a look at it or accompany her to the dock?

45MR HARTNETT:  I'll accompany her to the dock, Your Honour.

46HER HONOUR:  All right.  Mr Goetz, is there anything else from your point of view?

47MR GOETZ:  No, Your Honour.

48HER HONOUR:  Thank you.  And nothing further from you, Mr Hartnett?

49MR HARTNETT:  Nothing.

50HER HONOUR:  Thank you, adjourn please.

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