Director of Public Prosecutions v Cacaj, Gjolaj and Camaj
[2019] VCC 2200
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Suitable for Publication |
CR 19-01326
CR 19-01328
CR 19-01630
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MARTIN CACAJ PJETER GJOLAJ PATRICK CAMAJ |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 & 27 November 2019 | |
DATE OF SENTENCE: | 18 December 2019 | |
CASE MAY BE CITED AS: | DPP v Cacaj, Gjolaj and Camaj | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2200 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Pleas of guilty – one charge of attempting to import firearm parts with intention of trafficking – one charge of attempting to import Tier 2 goods – one charge of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth) – one charge of obstructing Commonwealth public officials (Camaj) – offenders imported and trafficked firearms sent from the USA to Australia – four consignments containing firearm frames and magazines – offenders failed to provide information in relation to electronic devices – serious offending which involved planning and communication – very good prospects of rehabilitation.
Legislation Cited: Criminal Code (Cth), Customs Act 1901 (Cth), Crimes Act 1914 (Cth), Crimes Act 2014 (Cth), Customs (Prohibited Imports) Regulations 1956 (Cth), Sentencing Act 1991
Cases Cited: DPP (Cth) v Munro [2019] VSCA 89, Avis v The Queen [1997] EWCA Crim 3423, DPP v Weybury [2018] VSCA 120.
Sentence: Total effective sentence of 4 years imprisonment with non parole period of 2 years and 9 months imprisonment (Cacaj and Gjolaj). Total effective sentence of 3 years and 3 months imprisonment with a non parole period of 2 years and 3 months imprisonment (Camaj).
---
APPEARANCES: | Counsel | Solicitors |
| CDPP | Mr R Pirrie | Commonwealth Director of Public Prosecutions |
| For the Accused Martin Cacaj For the Accused Pjeter Gjolaj For the Accused Patrick Camaj | Mr D Gurvich QC Mr R Richter QC Mr D Dann QC | Drayton Sher Slades & Parsons Stary Norton Halphen |
HIS HONOUR:
Introduction
Martin Cacaj and Pjeter Gjolaj, you have each pleaded guilty to one charge of attempting to import firearm parts with the intention of trafficking contrary to ss 11.1(1) and 361.2(3) of the Criminal Code (Cth) which carries a maximum penalty of 10 years imprisonment; one charge of attempting to import Tier 2 goods contrary to s 11.1(1) of the Criminal Code (Cth) and s 233BAB(5) of the Customs Act 1901 (Cth) which carries a maximum penalty of 10 years imprisonment; and one charge of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth) contrary to s 3LA(6) of the Crimes Act 1914 which also carries a maximum penalty of 10 years imprisonment.
Patrick Camaj, you have pleaded guilty to one charge of importing firearm parts with the intention of trafficking contrary to s 361.2(3) of the Criminal Code (Cth) which carries a maximum penalty of 10 years imprisonment; one charge of importing Tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth), which carries a maximum penalty of 10 years imprisonment; one charge of obstructing Commonwealth public officials contrary to s 149.1(1) of the Criminal Code (Cth) which carries a maximum penalty of two years imprisonment; and one charge of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth) contrary to s 3LA(6) of the Crimes Act 1914 which carries a maximum penalty of 10 years imprisonment.
As to you Pjeter Gjolaj and you Patrick Camaj, you also admitted your prior criminal history.
Circumstances of the offence
A prosecution opening was tendered on the plea and may be summarised as follows:
The charges arise from Operation Badcoe concerning the illegal importation and trafficking of firearms sent from the USA to Australia. The charges relate to four consignments into Australia (referred to in the evidence as consignments 1, 2, 3, and 5). Each consignment, purported to contain motorised toys, in fact contained firearm frames and magazines.
Charges 1 and 2 concern you Martin Cacaj and you Pjeter Gjolaj and relate to three consignments referred to as consignments 1, 2 and 3.
Charges 3 and 4 concern you Patrick Camaj and relate to one consignment referred to as consignment 5.
On 9 January 2019, Australian Border Force (ABF) officers at the Melbourne Gateway Facility intercepted an international mail article from the United States of America. Examination of the consignment by ABF officers found it to contain:
•16 firearm frames;
•9 x 30 round magazines;
•6 x 50 round drum magazines;
•nine magazine end caps and nine followers to suit the extended magazines; and
•two 9mm drilling bits.
The goods were described as 'Motorized kids toy motorcycle no battery'.The items were concealed within the toy. The consignment contained details including that the consignee was Mathew Galldon, 24 Horne Street, Brunswick, Victoria 3056, Australia. This consignment is referred to as consignment 1.
A further three international mail consignments to the same consignee address were identified in transit to Australia. Two of these three consignments are referred to as consignments 2 and 3 in the evidence.
On 11 January 2019, ABF referred the consignments to the Australian Federal Police (AFP) for investigation. The address listed on the consignment of 24 Horne Street, Brunswick, Victoria 3056, is a private residence which was advertised on Airbnb for short term rental.
On 11 January 2019, a female with a southern European accent made two calls to Australia Post (AusPost) enquiring about the arrival of consignment 2. The phone was falsely subscribed in name Mr Thanh Phu. Call charge records show the caller was in the vicinity of the residence of you, Pjeter Gjolaj in Glenwood, New South Wales.
On 14 January 2019, consignment 2 and consignment 3 arrived at the Melbourne Gateway Facility. An X-ray of both consignments identified firearm parts concealed within the consignment in a similar method to consignment 1. Consignment 2 contained:
·17 firearm frames;
·9 x 30 round magazines; and
·7 x 50-round drum magazines.
Consignment 3 contained:
·17 firearm frames;
·9 x 30 round magazines; and
·4 x 50 round drum magazines.
Thus Charge 1 represents the total of 50 firearm frames from the three consignments and charge 2 represents the total of 27, 30 round firearm magazines and 17, 50 round firearm drum magazines from the three consignments.
On 16 January 2019 at 11.49 am, a male person using telecommunications service 0414 589 638 contacted AusPost identifying himself as Matthew Galldon of 24 Horne Street, Brunswick. He enquired as to the whereabouts of the three consignments. He was advised packages were with customs and should be ready within the next week.
Telecommunications service 0414 589 638 was falsely subscribed in the name of Mr Allan Bucca, St Marys, New South Wales 2760. The service was connected on the same day as the Thanh Phu phone. After arrest, this phone was found in a car parked in the driveway of you, Pjeter Gjolaj.
On 16 January 2019, the AFP obtained authorisation for a controlled operation, authorising the delivery of consignment 3 to 24 Horne Street, Brunswick, Victoria 3056.
On 17 January 2019 at 9 am, an AFP officer purporting to be an AusPost delivery driver, attempted delivery of the substituted consignment 3 to the consignee address at 24 Horne Street, Brunswick. The AFP member left an AusPost collection card in the letterbox, advising that the package would be available for collection from Brunswick East Post Office after 4 pm that day.
On 18 January 2019 at 11.21 am, an AFP officer purporting to be an AusPost delivery driver, again attempted delivery of consignment 3 to 24 Horne Street, Brunswick. A male who identified himself as 'Sam' answered the door and advised that he was there with Airbnb but was willing to take the package. He was advised that the consignee, 'Matthew', needed to sign for it in order to accept delivery. The delivery driver left an additional parcel collection card in the mailbox with a phone number to contact the driver.
On 16 January 2019, the Airbnb property manager responsible for 24 Horne Street was contacted by a person named 'Martin', who stated that his 'wife had ordered something online' and he 'thinks that she accidentally put the address' of the Airbnb. 'Martin' is you, Martin Cacaj.
You, Martin Cacaj, had previously stayed at 24 Horne Street, Brunswick after having booked the premises through Airbnb from 5 to 16 January 2019. The contact number provided was 0415 866 562. This number was registered to you. You stayed at the property with your wife and two young children. At the time, you were driving a black SUV-style vehicle.
On 17 to 18 January 2019, you Pjeter Gjolaj and you, Martin Cacaj, communicated on WhatsApp about creating fake photoshopped driver's licences.
On 18 January 2019 at 2.30 pm, you Martin Cacaj, again using Airbnb, booked the premises at 24 Horne Street, Brunswick from 21 to 25 January 2019.
On 19 January 2019, the AFP commenced lawful interception of telecommunication service number 0415 866 562.
On 19 January 2019, you Pjeter Gjolaj and you, Martin Cacaj rented a white Toyota Corolla. You both drove the Toyota from Sydney to Melbourne for the purpose of collecting the consignments.
On the evening of 20 January 2019, you Pjeter Gjolaj and you Martin Cacaj met you Patrick Camaj at your unit at 1205/283 City Road, Southbank. Also present at that time was your cousin, Mark Nikolic.
Later, you Pjeter Gjolaj and you, Martin Cacaj departed the location in Patrick Camaj's black Audi Q7, bearing New South Wales registration NBS 66F.
On 21 January 2019, at 11.13am, AFP officers placed two AusPost parcel collection cards into a lockbox at 24 Horne Street, Brunswick.
At 11.46 am vehicle NBS 66F was seen in Brunswick with you Martin Cacaj as the driver and you Pjeter Gjolaj as the passenger.
About 11.46 am, a message was sent to you Martin Cacaj via Airbnb advising:
·that the keys for 24 Horne Street, Brunswick were in the lockbox;
·the PIN for the lockbox; and
·that the property was available for check in.
At 11.55 am, AFP surveillance operatives observed you Martin Cacaj attend the premises at 24 Home Street, Brunswick, driving vehicle NBS 66F. At 12.03, you Martin Cacaj departed 24 Horne Street.
At 12.26 pm you Martin Cacaj attended Brunswick East Post Office at 167 Lygon Street, Brunswick East. You provided a parcel collection card to the AusPost employee and stated that you were there to collect a parcel. You produced an iPhone image of a photoshopped New South Wales driver's licence in the name of Matthew Galldon, of 35 to 39 Hampden Street, Beverly Hills, New South Wales, with driver licence number 16090563. The driver's licence number and address is the same as your legitimate driver's licence.
You were advised by the AusPost employee that the consignment had been returned to sender. You asked the AusPost employee to have the consignment redelivered and provided a contact phone number of 0415 866 562.
At 1.33 pm, an AFP officer purporting to be an AusPost delivery driver, contacted telecommunication service number 0415 866 562 and spoke with a male who purported to be Matthew Galldon. The male provided the tracking number for consignment 3 and stated that the package contained things for his son. The AFP officer stated he tried to deliver the package on Friday and would attempt to arrange redelivery and would call back shortly with more information about the consignment.
At 1.44 pm, AFP surveillance operatives observed you Martin Cacaj in company with you Pjeter Gjolaj. You were both observed to enter the black Audi Q7. You Martin Cacaj drove the vehicle to the vicinity of the Brunswick East Post Office. A short time later you departed the area and returned to Southbank, Victoria.
At 1:51pm, an AFP officer purporting to be an AusPost delivery driver again contacted telecommunication service number 0415 866 562 and spoke with a male who purported to be Matthew Gillidon. The AFP officer advised that the consignment would be redelivered the following day.
At 2.09 pm, you Martin Cacaj exited vehicle NBS 66F and entered the Brunswick East Post Office while you Pjeter Gjolaj remained in the vehicle. You again provided a parcel collection card to the AusPost employee and enquired about the status of two further consignments. The AusPost employee advised you that the consignments had been returned to sender and you would need to contact customer service. About 2.13 pm you both departed the area.
At 2.17 pm, you Martin Cacaj called AusPost contact centre. You requested the parcel to be redelivered to 24 Horne Street, Brunswick and you provided the email address of [email protected].
At 3.14 pm, an AFP officer purporting to be an AusPost delivery driver, contacted 0415 866 562 and again spoke with the male purporting to be Matthew Galldon. The AFP officer advised that there were another two packages for him which would be delivered on Wednesday, 23 January 2019. He was further advised that the originally requested consignment would be delivered the following day, 22 January 2019, between 8 am and 12 pm.
On 22 January 2019 at 10.10 am, an AFP member purporting to be an AusPost delivery driver contacted 0415 866 562 spoke with a male who was advised that the consignment would be delivered shortly.
About 10.38 am, an AFP officer purporting to be an AusPost delivery driver, attended the premises at 24 Horne Street, Brunswick with the substituted consignment 3. You Martin Cacaj met the AFP officer and accompanied him to the veranda. You then took delivery of the consignment from the driver and re-entered the premises with the package.
About 10.48 am you Martin Cacaj and you Pjeter Gjolaj opened the consignment while inside the dining room of the premises.
At 10.58 am you Pjeter Gjolaj rang the USA. You spoke to a male and discussed your concern as to whether the package had been intercepted.
At about 11.09 am, AFP officers entered 24 Horne Street, Brunswick for the purposes of executing a s.3E Crimes Act 1914 search warrant. You, Martin Cacaj were located on the back porch of the premises, close to the opened consignment. You Pjeter Gjolaj were inside the house. You were both arrested.
During a frisk search of you Pjeter Gjolaj, police located two mobile phones, one in each of your pants pockets. A third mobile phone was located on the couch in the living room.
Federal Agent Michelle Fisher had recorded a conversation with you Martin Cacaj explaining that the 3LA order had been issued by the court in your name and that you were compelled to provide passwords to any electronic devices. You denied owning a phone, saying that you used only one but did not own it. The terms and requirements of the 3LA order were explained to you. You chose to remain silent.
Vodafone subscriber records of the iPhone phone found in the left pocket of you, Pjeter Gjolaj, show that telecommunications service 0415 866 562, registered to you, Martin Cacaj, was being used in the device.
Vodafone subscriber records of the iPhone phone found in the right pocket of you, Pjeter Gjolaj, showed that multiple telecommunications services had been used in the device, including service 0433 653 381, registered to you.
Subsequent analysis of the phones established that the three services falsely registered in the name of Thanh Phu had been used and that they were connected on 29 November 2018. Further, they were used to communicate between you Martin Cacaj and you Pjeter Gjolaj across various platforms to coordinate the planning and execution of the importation.
You Martin Cacaj and you Pjeter Gjolaj were transported to the AFP Melbourne headquarters and you were both afforded the opportunity to participate in a record of interview. You both declined to comment in relation to questions put to you.
You Pjeter Gjolaj were asked to provide the necessary passcodes to access the two mobile phones found in your clothing and you declined. You were advised a 3LA order could be sought compelling disclosure, and that failure to comply carries 10 years imprisonment.
At about 2.30 pm, you Patrick Camaj were at 1205/269-283 City Road, Southbank. You picked up a suitcase and another bag and took them to a vehicle, the black Audi Q7 NBS 66F. You moved the vehicle to the roof of a parking lot located at Crown Casino, directly across the road and in the line of sight of your apartment. In doing so, you stated to Mr Nikolic, 'It's safer for me if my car's not here.'
About 2.55 pm, AFP officers entered 1205/269-283 City Road, Southbank, for the purpose of executing a s.3E Crimes Act 1914 Search Warrant. You, Patrick Camaj and Mark Nikolic, were present.
At the time the AFP officers entered the premises, you Patrick Camaj threw an amount of cash and other items from the balcony of the premises. It is that conduct that relates to Charge 5, obstructing Commonwealth officials.
AFP officers observed the following at the premises:
·a quantity of $100 notes scattered on the floor near the open balcony door;
·a further quantity of $100 notes on the balcony and shutters outside the building;
·approximately 100 grams of green vegetable matter, suspected to be cannabis; and
·during a search that was conducted of the outside of the building below where the $100 notes had been observed thrown from the balcony, AFP officers located a mobile phone, router and hard drive.
During the search warrant, Federal Agent Mark Sharer explained to you, Patrick Camaj, that the 3LA orders had been issued by the court in your name and that you were required to provide passwords to any electronic devices. In your record of interview, you declined owning the phone, saying that it could belong to other people who stayed in your flat.
You were arrested and transported to Melbourne AFP Headquarters and interviewed. You declined to comment in relation to the alleged destruction of evidence. You were released pending further enquiries.
Later that evening, building management at 269-283 City Road, Southbank, Victoria, advised police that a consignment was awaiting collection with the concierge. The consignment was addressed to Mario Esposito, 1205/283 City Road, Southbank, Victoria and was sent from Roseville, Michigan, USA. This consignment is referred to in the evidence as consignment 5. The goods description recorded on the parcel was 'kids motor toy (no battery)' which is similar to the three previously intercepted consignments described above.
AFP officers opened the consignment which revealed a concealment consistent with the method of concealment of the three previously intercepted packages and contained amongst other things:
·15 firearm frames;
·five 12-round magazines; and
·three 50-round magazines.
On 23 January 2019 at about 4.50 pm, you Patrick Camaj departed Perth, Australia on flight JQ106 to Denpasar.
At about 5 pm the same date, an arrest warrant was issued for you. At about 9.43 pm, Indonesian authorities advised that you were refused entry to Indonesia and were returning to Australia aboard flight JQ107 to Perth. At about 11.30 pm, following your arrival into Perth, Australia, you were arrested by AFP officers.
On 23 January 2019 at 9.49 am, AFP members executed a search warrant at the residence of you Pjeter Gjolaj at 36 Applebox Avenue, Glenwood, New South Wales. Items seized at this address included $10,000 cash and a mobile phone. Phone records established that that phone was used to contact AusPost on 16 January 2019, as referenced above.
On 11 February 2019, a s 3LA court order in the name of you Pjeter Gjolaj was issued and served via your legal representative. Police were advised by your lawyers that you did not want to have any further contact from police. A number of attempts were made to follow up the service of this 3LA with no response.
On Wednesday 13 March 2019, a member of the AFP Firearms Identification team, David Wayne Bennet, conducted an examination of the items from within the seized consignments. He concluded that the firearm frames and magazine parts are controlled by the Customs (Prohibited Imports) Regulations 1956 (Cth).
On 30 April 2019, s 3E Crimes Act 1914 search warrants were executed on the Commonwealth Bank and ANZ in relation to records held for Patrick Camaj, Martin Cacaj and Pjeter Gjolaj.
CBA records in the name of you Patrick Camaj, showed that:
·between the period 29 May 2018 and 23 January 2019, cash deposits were made into the account via ATM and funds transfers from various people, in Victoria and New South Wales, totalling approximately $189,285;
·between the period 29 May 2018 and 4 January 2019, outgoing International Money Transfers totalling approximately $79,104.54 were made from the account, $63,154.54 were to accounts based in the USA;
·cash deposits into the account appear to be structured to be less than AUD$10,000 which is the reportable threshold for cash deposits in Australia;
·shortly after the cash was deposited into your account, outgoing transfers were made to accounts located in the region in the USA where the four seized firearms consignments originated from; and
·on 15 January 2019, a withdrawal of $19,030 was made from the account at a South Melbourne Branch.
Nature and gravity of the offending
The charges on the indictment that relate to the four consignments of firearm parts and magazines are by their nature serious offences. Further, in relation to the facts represented in this instance, each of your counsel conceded that a term of imprisonment is warranted.
As part of the plea opening, a video was played to the court demonstrating the ability to construct a semi-automatic pistol using parts that were imported in the consignments. While some additional parts needed to be added, the construction of a Glock pistol was able to be achieved and was capable also of using the magazines that were part of the consignments. The video also demonstrates the loading of one of the drum magazines with bullets which was capable of holding approximately 57 bullets (although described as a 50-round magazine). Once the gun was constructed and the magazine attached, the video then depicted the firing of the weapon demonstrating that it functioned as a semi-automatic weapon.
The total of the four consignments consists of 65 frames, 32 conventional magazines and 20 drum magazines. It is not in dispute that the firearm parts and magazines that were imported could have no lawful use within Australia and thus could only be sold illegally. Therefore, the potential was for 65 semi-automatic handguns to be made available to the criminal community in Australia, most of which from this consignment could have been provided with magazines.
As was noted by the Court of Appeal in DPP (Cth) v Munro[1] weapons such as these are mass killing machines the only purpose of which was their use in the threatened or actual killing of human life.
[1] [2019] VSCA 89 at [97].
In Munro under the heading 'The scourge of firearms', the Court of Appeal summarises the legislative history in relation to the importation of firearms for the purpose of trafficking and the provisions relating to the importation of Tier 2 goods. I refer to and adopt the comments of the court in Munro. The court also referred to the United Kingdom decision of Avis v The Queen[2] and the comments of Lord Bingham CJ where he stated:
'The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of the law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.'
[2] [1997] EWCA Crim 3423.
While the court in Munro provided important guidance in relation to the harm that illegal firearms may cause in society, it is trite to say that the phrase 'The scourge of firearms' is no more fully embraced than when referring to the specific facts of this case. Small handguns are easily concealed and while the magazines that hold multiple rounds of ammunition may be more cumbersome, they too are easily concealed and can be quickly attached to the handgun, thereby creating a weapon that could for example wreak enormous damage in a public space.
It is clear that this type of importation involved a degree of planning which is evidenced from the use of false names, phones set up in false names, renting of property to receive the consignments, travel from Sydney to Melbourne in order to receive the consignments and in liaising with the overseas suppliers.
In relation to you Patrick Camaj, it was suggested by the prosecution that the evidence of the large amounts of money being processed through your bank account over the relevant period suggests that you were pivotal in arranging money transfers in order to facilitate the importations. As was discussed at the plea, no specific evidence was provided by the prosecution as to the detail of the various deposits and the outgoing international transfers. That said, no explanation was provided by you through your counsel explaining the nature of the transactions. In the circumstances while an inference may be drawn from the surrounding circumstances as to the purpose of the deposits and transfers, without further evidence I am unable to make a finding in relation to the bank account evidence. However, in my view it is not necessary that I make any finding. It is self-evident and not in dispute that you all were principles in the importations as you were the receivers of the consignments. Further, the importation and trafficking of these items necessarily involves the exchange of significant amounts of money either by electronic transfer or the provision of physical cash. In all the circumstances, I also find that you were involved in the importations for profit.
Mr Richter who appeared with Ms Burnnard on behalf of you Pjeter Gjolaj, submitted that the offending is in the low to mid-range. As noted during the plea, in my view for the reasons stated by the Court of Appeal in DPP v Weybury,[3] attempts to categorise a case into a level of seriousness by terms such as 'lower to mid-range' obscure the nature of the sentencing task. The maximum penalties that apply to each charge relating to the importation of the firearm components and the magazines is 10 years. That maximum penalty is of course reserved for the worst category of offending. This is not the worst category, but it is serious offending and certainly could not be categorised as low level.
[3] [2018] VSCA 120
As to the s 3LA charge which each of you face, because of the nature of the charges to which the 3LA relates, being a defined serious offence, the maximum penalty is also 10 years imprisonment. Therefore, it is clear that Parliament views contravention of the provision in the circumstances of a case such as this as serious.
As noted above, the importation of the consignments involved a degree of panning and self-evidently, a degree of communication between each of you and the suppliers in the USA. It would further involve a degree of communication between the three of you and others here in Australia. In each case, on arrest you failed to comply with the s 3LA orders - which are issued by a court - and provide information in relation to your various electronic devices.
In my view, while the case against you was, by the time of arrest relatively strong, the provision of information that would assist in further investigation of this matter was impeded by your failure to cooperate and comply with the s 3LA orders. In the circumstances, I view this offence in each case as relatively serious although I accept that the provision of such information may have a more direct impact in for example, cases such as possession of child pornography or in emergency situations where the information is required in order to prevent risk to others.
As to Charge 5 that relates to you Patrick Camaj, that offence involved you throwing various items from the balcony of your unit to the street some 12 stories below. The result was that the mobile phone, the router and the hard drive were destroyed, and no information was able to be obtained from those items. This charge is of a less serious nature than the s 3LA charge and carries a maximum penalty of two years imprisonment. However, your conduct frustrated aspects of the investigation and in my view warrants a term of imprisonment.
Personal circumstances
Martin Cacaj
You are currently 27 years of age and were 26 at the time of offending. You have no prior criminal history.
You were born and raised in New South Wales and are the eldest of three children. Your mother is a bank executive and your father is a self-employed painter and decorator. Your younger brother and sister are both completing tertiary degrees.
Your parents separated when you were 18, however continued to live in close proximity and they remain supportive of you. Evidence was called on the plea that your father is able to employ you upon your release from custody and that you would be able to live with your mother.
You left school at the beginning of Year 10 and worked soon after. You worked in various occupations including as a mechanic and as a labourer, and you have worked for several years with your father as a painter and decorator.
You met your wife in Albania when you were 20 years of age. You married some four years later, and you have two sons together, aged three and two. One of your sons has experienced developmental problems and a letter was tendered from Dr Ana Dosen, paediatrician, outlining the various difficulties your son suffers. Ultimately, it is suggested that given the various difficulties as identified by Dr Dosen, it is likely that your son suffers autistic spectrum disorder.
Since your arrest, your wife and children have been living with and supported by your mother.
You have had some difficulty with drugs and alcohol. You commenced using alcohol at age 16 and were using up until the time of remand. You also at that age began using cannabis, however, cocaine became problematic in the three years leading up to your arrest.
A report was prepared by Dr Matthew Barth, psychologist and tendered on the plea. Dr Barth provides detailed history and also conducted some psychometric testing. He concludes that you are a relatively immature man with simplistic social reasoning. He described you as a man who is vulnerable to engaging in irresponsible behaviour with poor coping skills, ultimately leading you to short-sighted and impulsive decision making. Dr Barth concluded that you suffer an adjustment disorder with mixed anxiety and depressed mood.
Since you have been on remand you have engaged yourself in several courses and are motivated to complete your Year 12. Also tendered on the plea were a number of urine screens demonstrating that you have remained drug free whilst in custody.
References were tendered from family members a number of whom were also in court supporting you. Your mother Theresa Cacaj gave evidence on the plea. Although she is very disappointed and angry at your behaviour and the predicament you have put yourself in, she remains supportive of you and will provide accommodation for you and your family upon your release. Your wife also provided a written reference and again, while she feels that your behaviour has caused enormous disruption within the immediate family, she too remains supportive of you and looks forward to your release.
You wrote a letter to the court where you expressed your insight into your conduct and the effect it has had on you and your family. You state that having been in custody and seen victims of firearm crime, you now have a greater appreciation of the potential harm firearms can cause. The relevance of your letter will be further discussed below.
Pjeter Gjolaj
You are 26 years of age and were 25 at the time of the offending.
While you have no prior convictions as such, you admitted a criminal history which contained one matter from November 2017 which was possession of a prohibited drug. I was told on the plea that this related to a small amount of cannabis for which you received a bond.
You were born in Blacktown, New South Wales and your parents are of Montenegrin descent. You are the oldest of two, your younger sister works in banking.
You completed year 10, followed by approximately two years of a painting apprenticeship. You discontinued that apprenticeship in order to travel to Montenegro where you met and married your wife, ultimately returning to Australia in 2014 and settling in Sydney.
Upon your return to Australia, you worked at a call centre for an insurance company and from 2015 you have worked in your father's painting business. You have a daughter who was born in April 2018 and you have developed a particularly close bond with her.
You were exposed to your father's gambling from an early age and you yourself began gambling at age 18. You became a regular gambler and accumulated significant debts. You attributed difficulties you have experienced in your marriage, financial problems and generalised anxiety to your gambling problem. You say that it was your desire to clear your gambling debts that led you to become involved in this offending.
A psychological report was prepared by Patrick Newton, clinical psychologist, and tendered on the plea. Mr Newton outlines your history and provides some detail in relation to your gambling and the anxiety that has developed as a consequence of that addiction.
After completing a psychological assessment, Mr Newton is of the view that you are suffering from an adjustment disorder with anxiety. While Mr Newton also assesses you as meeting the criteria for a gambling disorder, he notes that that condition is in remission as result of you being in a controlled environment.
A number of references were also tendered on your behalf primarily written by family members. Your wife speaks of the very strong bond you have with your daughter and notes that apart from this offending behaviour, you are a human being with a good heart who is now focused on becoming a better person. Your mother has had great difficulty in coming to terms with the fact that you are in custody and while extremely disappointed in your behaviour, she continues to offer her support to you and has travelled to Victoria on a number of occasions to visit you.
Patrick Camaj
You are 34 years of age and were 33 at the time of the offending.
You have some criminal history that you have admitted, the most relevant matter being in 2018 where you were convicted of recklessly causing injury and placed on a community correction order. This offending breaches that order.
You were born and raised in Blacktown in Sydney. Your father was a forklift driver and also worked in the family run café. Your father passed away in 2009, suffering cancer. Your mother was primarily involved in home duties; however, she was also involved in running the family café. You have a sister aged 38 who works in banking and a brother aged 31 who works as a crane operator in Sydney.
You attended a public school from Years 7 to 10 and then St Andrews College where you completed Years 11 and 12. During your schooling years, you worked at your mother's café. Following school, you worked at the café full-time. The café was sold in 2013. You then opened a takeaway chicken store in 2014 which you operated for approximately 12 months.
From 2016 to 2017, you travelled a number of times overseas and at that time also operated an Airbnb in Kosovo for approximately two years.
You were in a long term relationship for about six years from 2007 to 2013. While travelling more recently, you met your current partner and commenced a relationship. This was a formal and traditional relationship and you had arranged to marry your partner; however, you were unable to get a visa for her to travel to Australia. As such you have not seen her for the last two years and are unable to contact her as a result of you being in custody.
A number of references were tendered on your behalf. A letter that was prepared by your uncle notes that in his view these offences are entirely out of character for you and that you have expressed remorse and apologised for the embarrassment you have caused to the family and to yourself. Your older sister provided a reference and she too notes your remorse and that you have accepted full responsibility for your actions.
You provided a handwritten letter to the court where you apologised for your actions and state that you are remorseful. You note that you have brought a great shame upon yourself and your family. You also indicate that you are suffering from an eye condition which ultimately will result in you being 70 to 80 per cent blind in your right eye. You note that in custody you have completed a number of programs and certificates were tendered, corroborating that fact. Further urine screens were provided which indicate you are drug free in custody.
Relevant sentencing considerations
As the charges to which you have all pleaded guilty are Commonwealth charges, I am required to take into account a number of matters pursuant to s 16A of the Crimes Act 1914 (Cth). Mr Pirrie, who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of specific matters listed in s 16A(2) that must be given weight and I have taken those into account.
You all pleaded guilty at the committal stage and no witnesses have been cross examined. Thus, I accept that your pleas of guilty in each case have been entered at an early stage. Your pleas have avoided the time and expense of a trial and demonstrate your acceptance of responsibility. Your pleas have therefore facilitated the course of justice.
As to remorse, as discussed during the plea, that is a more elusive concept based on the evidence presented. In the cases of you Martin Cacaj and you Patrick Camaj, you both prepared letters written to the court expressing your reaction to the offences and the criminal process. While reference is made to remorse, in my view the letters focus more on the shame brought to your respective families as a result of the charges rather than an appreciation of the enormous harm gun violence causes and indeed could cause if the items you imported remained in the community.
What is relied on further in addition to the letters written to the court are some comments contained in the letters of reference tendered. For example, in a letter from Daniel Cacaj, brother of you Martin Cacaj, he notes that you have conveyed to him your remorse and appreciation of the damage guns can cause if in the wrong hands.
It is clear from the letters written and the references tendered that you each have gained or are gaining insight into the seriousness of your conduct. While I do not accept that you had no appreciation of where the weapons may end up or of the harm gun violence can cause, I do accept that you were distracted by the short term gain that you were seeking to obtain. In my view, having read the materials tendered, now you each have had time to reflect while in custody, I accept that there is some evidence of genuine remorse.
It is clear that general deterrence is the predominant sentencing consideration in this instance. As was recently confirmed in Munro,:
'As we have said, general deterrence must be a paramount sentencing consideration for offending of the present kind. We agree with the trial judge that the sentence to be imposed had to signal to those involved in unlawfully introducing firearms into Australia for profit that the potential substantial financial rewards to be gained are neutralised by the risk of severe punishment.'[4]
[4] At [91].
Mr Pirrie submitted that because the offending involved a sophisticated course of conduct, specific deterrence is relevant in order to deter you from committing further offences. Of relevance to specific deterrence is also prior criminal history. As to you Pjeter Gjolaj, I place little weight on the relatively minor and unrelated prior criminal matter. As to you Martin Cacaj, you have no prior criminal history. Thus, in relation to you Pjeter Gjolaj and you, Martin Cacaj, in my view specific deterrence need not weigh heavily in the sentencing equation.
However as to you, Patrick Camaj, you committed these offences while you were subject to a community correction order and thus in your case, some weight must still be attributed to specific deterrence.
As to your prospects of rehabilitation, each of you have provided material demonstrating that you have accepted that you will be required to spend time in custody away from your families who all reside in New South Wales. You have each taken on courses in custody and have remained trouble free and drug free. You all have close and supportive partners and families who will continue to support you upon release. It is also a common theme in the references and other materials that gaol has had a salutary effect on each of you. Thus, taking into account your individual circumstances, the close family support you all enjoy and the materials I have been provided with, in all the circumstances I assess the prospects of rehabilitation of each of you as very good.
While Charges 1 and 3 (the import firearm parts charges) and 2 and 4 (the Tier 2 magazine charges) represent specific criminality, the reality is that the items were all imported together, and each consignment contained the combination of firearm parts and magazines. As such I accept the submission made on behalf of each of you that there should be full concurrency between these two charges. As to the s 3LA charges, each of your counsel have conceded that there should be a degree of cumulation.
I acknowledge that Charges 1 and 2 in relation to you Martin Cacaj and you Pjeter Gjolaj are attempt charges and Charges 3 and 4 in relation to you, Patrick Camaj, are complete charges. However, as discussed at the plea hearing in all the circumstances the detection and seizing of the consignments do not differentiate to any great degree and while the consignment to you Patrick Camaj did make it to your building, it never came into your direct possession. Further, the maximum penalties are the same for both attempt and the complete offence.
While there is commonality between each separate consignment, the reality is that the charges relating to you Martin Cacaj and you Pjeter Gjolaj represent three consignments totalling 50 frames and 44 magazines whereas the charges relating to you Patrick Camaj relate to the one consignment of 15 frames and nine magazines. As such, the sentences I impose must differentiate and reflect those facts.
Finally, counsel on behalf of each of you submitted that a recognizance release order pursuant to s 20(1)(a) of the Crimes Act 2014 (Cth) is the appropriate disposition. Thus, the submission necessarily implies that the available three year term of imprisonment pursuant to such an order with release after serving a period of custody is within the appropriate range. For the reasons stated above in relation to the seriousness of the offending, I do not agree. In my view a head sentence with a non parole period is the only appropriate disposition in all the circumstances.
Sentence
Martin Cacaj, Pjeter Gjolaj and Patrick Camaj, please stand.
Martin Cacaj and Pjeter Gjolaj, on Charge 1, attempt to import firearm parts with the intention of trafficking and Charge 2, attempt to import Tier 2 goods, you will each be convicted and sentenced to three years and nine months imprisonment on each charge. The sentences on Charges 1 and 2 will be concurrent and will both commence today.
Patrick Camaj on Charge 3, import firearm parts with the intention of trafficking and Charge 4, import Tier 2 goods, you will be convicted and sentenced to three years imprisonment on each charge. The sentences on Charges 3 and 4 will be concurrent and will both commence today.
In relation to you Patrick Camaj, on Charge 5, obstructing Commonwealth public officials, you will be convicted and sentenced to three months imprisonment. That sentence will be concurrent and will also commence today.
On Charges 6, 7 and 8, failure to comply with a s 3LA order, you will each be convicted and sentenced to 12 months imprisonment. The sentences on Charges 7 and 8 will commence nine months before the completion of the sentences on Charges 1 and 2 in relation to you Martin Cacaj and you Pjeter Gjolaj; and the sentence on Charge 6 will commence nine months before the completion of the sentences on Charges 3 and 4 in relation to you Patrick Camaj. Thus, the intention is that three months of the sentence on Charges 6, 7 and 8 will be cumulative on the sentences on Charges 1 and 2, and 3 and 4 respectively.
Thus, the total effective sentence in relation to you Martin Cacaj and you, Pjeter Gjolaj is four years imprisonment. I direct that you serve two years and nine months before becoming eligible for parole.
The total effective sentence in relation to you Patrick Camaj is three years and three months imprisonment. I direct that you serve two years and three months before becoming eligible for parole.
I declare that in relation to you Martin Cacaj and you Pjeter Gjolaj, 330 days be reckoned as the period of imprisonment already served under the sentence I have imposed, and in relation to you Patrick Camaj, 329 days be reckoned as the period of imprisonment already served under the sentence I have imposed. In each case, that does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your pleas of guilty, in relation to you Martin Cacaj and you Pjeter Gjolaj, I would have imposed a sentence of five years with a non parole period of three years and three months, and in relation to you Patrick Camaj, I would have imposed a sentence of four years with a non parole period of two years and nine months.
- - -
2
0