Director of Public Prosecutions v Caraku
[2023] VCC 1469
•4 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALDO CARAKU |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2023 | |
DATE OF SENTENCE: | 4 August 2023 | |
CASE MAY BE CITED AS: | DPP v Caraku | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1469 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Cultivate narcotic plant – cannabis L – falsification documents
Legislation cited: Sentencing Act 1991: s5(4C)
Cases cited: Pham v The Crown reported [2020] VSCA 114; Muaremovv The Crown [2018] VSCA 298; Quaresima v The Queen [2017] VSCA 306; DPP v Nguyen [2021] VCC 727; DPP v Tran [2020] VCC 1348; DPP v Barry [2019] VCC 2017; DPP v Nikkalaji [2019] VCC 774; DPP v Lam [2019] VCC 2073; DPP v Al Garawi [2019] VCC 1496; Worboyes v The Queen [2021] VSCA169; R v Mills (1998) 4 VR 235; Boulton v The Queen [2014] VSCA 342
Sentence:Convicted and sentenced to serve a Community Corrections Order for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Phillips | The Office of Public Prosecutions |
| For the Accused | Ms S. Coombes | Marcevski Lawyers |
HIS HONOUR:
1 Ronaldo Caraku, you can remain seated. On 1 August 2023 at the County Court of Victoria sitting at Melbourne, you pleaded guilty to the following charges on indictment no. L12649549.1.
Charge 1, cultivate a narcotic plant, Cannabis L. This charge has a maximum penalty of 15 years' imprisonment.
Charge 2, falsification of documents. This charge has a maximum penalty of 10 years' imprisonment.
2 You have no prior criminal history. You have spent 35 days in remand for a period of pre-sentence detention before being granted bail. You have been on bail for two years and seven months.
The circumstances of your offending
3 The prosecutor tendered an Amended Summary of Prosecution Opening for a Plea dated 28 July 2023. It was Exhibit “A”. The opening was read into the record of the court.
4
The Eastern Region Crime Squad commenced an investigation in
September 2020, into persons of Albanian descent, being involved in the cultivation of cannabis in grow houses in the eastern suburbs of Melbourne. The investigators made enquiries and conducted surveillance on a number of residential properties including, 4 Rowan Street in Doncaster, 111 Ayr Street, Doncaster, 4/316 Manningham Road in Doncaster and 55 Harold Street in Bulleen.
5 On 10 November 2020, police executed a search warrant at 111 Ayr Street in Doncaster. During that search that was conducted at that premises, you were arrested, and investigators seized your phone. The phone was examined and found to contain photographs. The metadata contained in those photographs established that the photographs had been taken at a number of locations, including Olympiad Crescent in Box Hill.
6
As a result of the information located on your phone which was used by you, investigators obtained a further search warrant and on 14 December 2020 they executed that search warrant at 25 Olympiad Crescent in Box Hill North.
A hydroponic crop was located at that address. It was found to consist of 89 plants and at that time 28.02 kilograms of cannabis.
7 Your plea of guilty to Charge 1, which is a charge alleging cultivating simpliciter, was accepted on the basis that you were involved in cultivating cannabis at the property. You did not have knowledge that the property at 25 Olympiad Crescent, Box Hill was being used to cultivate a hundred or more plants, or plants weighing more than 25 kilograms. In effect, a commercial quantity.
8
Your involvement with the cannabis growing at 25 Olympiad Crescent in
Box Hill North, is between 21 September 2020 and 10 November 2020, the day of your arrest. The quantities of cannabis found on 14 December 2020 at the premises had no input from you between 10 November 2020 and the day of the seizure by police on 14 December 2020.
9 A search of your car, being a red Holden Omega, registered number 1LF 81A revealed the following items:
·Two green 20-litre containers of COCOS fertilizer.
·A 20-litre container of Rapid Sea Force liquid fertilizer.
·A white Huawei mobile telephone.
·An invoice from Smart Electrical Clearance Outlet, in the name of Micolas Auigliano.
·A black Nokia mobile telephone.
·One black brand wallet containing: a Medicare card, a Westpac bank card, and a Victorian Driver's licence in the name of the person by the name of Robert Cavali.
·An Albanian driver's licence in your name, a Commonwealth Bank card in your name, and a Southern Cross University student card in your name.
·A white Apple iPhone was found in the glovebox.
·An ASUS Laptop serial no. L3NOCBO3S34911A in the backpack, that is relevant because of a further finding at the other address.
·A hydro access digital timer in a box.
·A Bupa Health Insurance membership in your name.
10 The false documents in the name of Robert Cavali were used to obtain a lease at a property at 20 Cavendish Drive in Templestowe Lower. The prosecution does not allege you personally used those documents to obtain that lease. The false documents in the name of Robert Cavali are the basis of Charge 2 in this case.
11 On 10 November 2020, when you were interviewed by police, you told them as follows:
·You had lived at 7 Hillview Road in Balwyn North.
·You claimed that you were sleeping at a mate's place when you were arrested, that is at the place of address; you did not live there, and you were just visiting.
·You had been living in Melbourne for approximately 17 months.
·You would smoke cannabis when you struggled to sleep.
·You admitted that you had been in the garage at 111 Ayr Street where you were arrested but had no knowledge of the contents of the garage apart from a motorbike.
·When you were asked about the false documents in the name of Robert Cavali located in your vehicle, you admitted that they were false documents. You claimed that you had got them from an Indian guy in the city for $300 because security would not let you into clubs, meaning nightclubs, without an Australian identification.
·You admitted that you drove the red Holden Omega, and you admitted that you were the only person that drove that car.
·When you were asked about the fertiliser located in your car, you claimed you wanted to work on your garden at home, and heard that it would make the plants grow well.
·When asked why there were packets of sugar in the car, you claimed that you drank a lot of coffee and were concerned that there was going to be a shortage over COVID.
·At the conclusion of that record of interview you gave your fingerprints and DNA samples.
12
Your seized phone was analysed by investigators, that was the link to
25 Olympiad Crescent in Box Hill North. The search of the premises there found a hydroponic setup. It was a sophisticated hydroponic set up in rooms one, two, and three of the house, and the crops had already been harvested. There was nothing but stumps left in the pots. But relevantly in the lounge room, there was a mattress, a grey suitcase containing VicRoad documents in the name of
Ronaldo Caraku, and a receipt of Universal Traveller dated 15 November 2019, for travel between Australia and Albania in your name.
13
In room four, there were 89 cannabis plants at various stages of maturity, which weighed approximately 28 kilograms and a plastic pot containing loose cannabis plant material. As I say, in total at that time, 89 cannabis plants were located in a property, they were found to weight 28.02 kilograms. The plants were examined by the Botanist, Kylie Slattery, who estimated that they were between four to
six weeks post-nursery phase. Ms Slattery noted that some of the plants had been hand-watered while some of the plants had been watered by an irrigation system, and some of the plants had been harvested.
14 You were in custody on remand from 10 November 2020 until you were granted bail on 14 December 2020. A contested committal was conducted on your behalf on 13 and 14 October 2021. The charges were resolved to a plea of guilty on 16 December 2021. You have spent 35 days in pre-sentence custody.
Your personal circumstances
15 You were 22 years of age at the time of your offending, you are now 25. You were born and raised in Albania. Your parents and younger siblings remain in Albania. You have the support of a loving, hardworking and law abiding family in your country of birth.
16 You completed your high school studies in Albania, and you then graduated with a Bachelor of Communications in Public Relations from the European University in Tirana in 2019.
17
In April 2019, you came to Australia on a three year student visa. You initially studied for one year at the Southern Cross University, you enrolled in a
Bachelor of Business. In 2020, you transferred to Torrens University, studying a Bachelor of Business.
18 However, COVID-19 pandemic intervened and due to the isolation and depression you reverted to your previous use of cannabis. You deferred your studies from Torrens University. For the past two years, you have lived in a de facto relationship with Andreas Marasco. Mr Marasco is employed as a chef and is supporting you both emotionally and financially.
19 You received financial assistance from your family. You have undertaken chef training at Zarga Restaurant. Mr Carnevale from Zarga, which was Exhibit 2 in this proceeding, speaks of your honesty, integrity, and hardworking attitude. After the plea hearing at this court, the court was provided with confirmation of an offer of full-time employment to you as a janitor in a business known as Body by Daniel.
20 You are currently on a bridging visa and awaiting the progress of your partner visa application based on your de facto status with Mr Marasco.
21 You have also expressed a desire to return to Albania to engage in a political career, to make life better for your fellow Albanians, as exhibited in Exhibit 3.
22 As I said before you have no criminal history.
Sentencing considerations
23 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of this community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
24 I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of community seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into this society, or into society in general, be it here or Albania.
25
I also am required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences.
I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed from one another. I just note there that I think it says 20 per cent of them result in a Community Corrections Order only disposition.
26 I am mindful of the provisions of the Sentencing Act and in particular s5(4C), which directs the sentencing court to consider whether a Community Corrections Order can achieve the purpose for which this sentence is to be imposed. I have reviewed Boulton's case in considering if a Community Corrections Order would be appropriate in your case. And as you know, I have had you assessed for a Community Corrections Order. You have been assessed as being suitable, of course that is not the end of the matter.
27 I have taken into account your plea of guilty. Your plea of guilty is at a relatively early stage. Your plea of guilty to this charge has the utilitarian value to the community. Your plea of guilty has saved this community the expense of court proceedings including a trial. Your plea of guilty has given a certainty of outcome for this case and your plea of guilty is evidence of your remorse. I accept that you are remorseful for your offending.
28 Your plea also demonstrates that you are willing to facilitate the course of justice in this community and it indicates you accept responsibility for your criminal conduct. I also accept that your plea is a valuable plea in the circumstances of this case.
29 Relevantly, the pronouncement of the Court of Appeal in the case of Worboyes v The Queen, reported at [2021] VSCA169, has application to your sentencing. The Court of Appeal stated that sentencing judges must ensure that the plea of guilty results in a perceptible amelioration of sentence.
30 You are a young offender. At the time of your offending, you were 22 years old, you are now 25. You have no prior convictions. It is a principle to sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored and taking into account all other sentencing considerations to promote your rehabilitation. This approach serves the interest of the individual offender, that is you, and the community as a whole.
31 In the case of R v Mills, these three propositions of sentencing were set out:
(1) Youth of an offender, particularly a first time offender, should be a primary consideration for a sentencing court where that matter properly arises.
(2) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus for example, individualised treatment focusing on rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as the offender; and
(3) The youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality. The benchmark of what is serious as to justify an adult imprisonment, may be quite high in the case of a youthful offender. And where the youthful offender has not previously been incarcerated, a shorter period of imprisonment may be justified. This proposition is an application of the general principles set out in s5(4) of the Sentencing Act.
32 Returning to the consideration of current sentencing practices, both the prosecution and your counsel have referred to cases on the sentencing of cultivating cannabis charge. The prosecution relied on the following cases: Pham v The Crown reported [2020] VSCA 114; Muaremovv The Crown [2018] VSCA 298; Quaresima v The Queen [2017] VSCA 306; DPP v Nguyen [2021] VCC 727; DPP v Tran [2020] VCC 1348; and DPP v Barry [2019] VCC 2017.
33 Each of these cases are factually very different from your offending. The Victorian County Court cases had sentences where a combination of imprisonment and a Community Corrections Order were imposed on the offender.
34 Your counsel also adopted the previously referred to authorities setting out that they were different from the current case before me. Your counsel also relied on and put forward to the court the following Victorian County Court cases: DPP v Nikkalaji [2019] VCC 774; DPP v Lam [2019] VCC 2073; and DPP v Al Garawi [2019] VCC 1496.
35 In your case, the objective seriousness of your offending is indicated by the following matters:
a) The amount of cannabis found on 14 December 2020, was 89 plants and weighed 28 kilograms.
b) The last possible day you could have been cultivating this crop was 9 November 2020, which was the day before your arrest.
c) Your photographs and the GEO of metadata placed you at the premises on 6 October and 30 October 2020.
d) On the day of 14 December 2020, your computer box and papers, and your DNA were found at the premises on a Franklin brand water bottle.
e) There is no evidence of payment or profit to you.
36 I find that you have had limited input to the cannabis crop, which was ultimately seized on 14 December 2020 at 25 Olympiad Crescent, Box Hill North. Whilst there have been submissions made about the use of the term “crop sitter”, in this case, I find that you have tendered to the subject cannabis crop in a limited manner on a limited number of times, early in the crop cycle.
37 Your offending is at the lower end for this charge. Nevertheless, the set up in the premises clearly was a commercial operation and you were a small part, but a crucial part of that operation. It was a sophisticated hydroponic grow house.
38 You are here in Australia on a bridging visa. You are applying for a partner visa. I am not speculating on what decision the relevant Federal Minister will make as a result of this sentence on that application. I find that it is an irrelevant consideration in this sentencing process.
39
I take into account you have spent 35 days' imprisonment, in the most restrictive of circumstances due to the COVID-19 restrictions in place for custody of prisoners at that time in 2020. You were in isolation for 14 days, followed by 21 days of
20 hours in a cell. It was your first time in custody. I have no doubt it has had a salutary effect upon you.
40 Since your release you have been on bail for two years and seven months, with strict conditions, particularly a curfew condition which was from 8 pm to 6 am. This is long after the COVID-19 curfew was lifted for other citizens in this state. Further, you have not been able to see members of your family as they live in Albania.
41
There has nearly been a three year delay between your arrest and the final disposition in this case. The delay has predominantly been caused by the
COVID-19 pandemic and its effect on court business. The delay has resulted in a level of unfairness to you and a degree of leniency maybe extended to you as a result. The unfairness arises from your rehabilitation over the delayed period, that is your positive rehabilitation. Your inability to see your family members because of the restrictions on travel and the length of time in a state of uncertainty about whether or not you were to return to custody.
42 In your case there were two other persons connected to the wider investigation by police, who have been prosecuted and sentenced. Mr Kristian Vocaj was sentenced to three years and nine months. Mr Vocaj’s role and other offending, makes his case very different from your case and is not relevant to a parity consideration by me.
43
Mr Hysni Naku was sentenced in the Magistrates' Court to a 12 months' Community Corrections Order. The period of offending in his case was for
two months and the quantity of the cannabis in his case was 70 kilograms, a substantially larger crop than in your case.
44
The principle of parity of sentencing has application to your sentencing process.
I know nothing of Mr Naku’s personal circumstances or the detail of his offending, except that the amount of cannabis seized, and the nature of his offending is closer to your offending, than that of Mr Kristian Vocaj.
45 I assess your prospects of rehabilitation as good. You have good family support, a stable domestic situation, and genuine prospects of employment as a janitor. You have made steps to control your use of cannabis. I accept your five weeks in prison were of such a shock to you, that you have no desire to engage in activity that will risk your liberty in the future.
46 The facts of your case are very unusual for an offence of cultivating cannabis simpliciter. The amount of the crop by plant number and the amount of cannabis grown is separated by a time period that you were in custody from the last time you could possibly have been at the premises, and the discovery by the police.
47 The false document you obtained, or documents you obtained, were used for the obtaining of a lease of a different property where you have no connection and are not charged with any offences. There was extensive surveillance around these properties that I had previously referred to, and you are not observed, except on the day of your arrest at the place of your arrest. You are a minor player in a much larger organisation.
48 The sentencing principles of general and specific deterrence, just punishment, denunciation and protection of the community, your rehabilitation, totality and parity of sentence are best served by the imposition of a Community Corrections Order with conditions for the cultivation of cannabis charge. I take into account that you have served 35 days on remand.
49 In respect to the false document charge, it can appropriately be punished by the imposition of a fine. Your explanation for obtaining the false document is that you needed Australian documents to obtain entry to nightclubs. The use of the false documents can be wider than that as was proved in the case, in matters of criminality, unrelated to you in this charge.
50 Would you stand please?
51 On Charge 1, you are convicted and sentenced to serve a Community Corrections Order for a period of two years, commencing today, with the following conditions.
a) You are to be supervised;
b) You are to perform 250 hours of unpaid community work;
c) You are to engage in drug treatment and rehabilitation; and
d)
You are to be judicially monitored. The first judicial monitoring is on
23 October 2023 at 9.30 am, that is you come back to this court.
52 You are to attend at the Box Hill Community Corrections centre within two working days of this day.
53
Charge 2, you are convicted and fined $1,000. I declare that you have served
35 days pre-sentence detention.
54 Section 6AAA, but for your plea of guilty, I would have sentenced you to 18 months with a 12 month non-parole period and I will sign the forfeiture and disposal orders when they are finally sent to me.
55 MS COOMBES: May it please the court. Your Honour just in relation to the forfeiture and disposal order, there's 114 cannabis plants nominated on that order, it should be 89, to be consistent. So, I just wanted to raise that.
56 HIS HONOUR: Yes. They should, it should be amended.
57 MS COOMBES: Yes.
58 HIS HONOUR: And thank you for raising that.
59 MS COOMBES: Yes, may it please the court. And one other, just clarification Your Honour. Your Honour's imposed a straight CCO.
60 HIS HONOUR: Yes.
61 MS COOMBES: I don't know whether Your Honour needs to declare a time served then, if there is no term of imprisonment. So, I don't think that needs to occur.
62 HIS HONOUR: All right.
63 MS COOMBES: That's my understanding.
64 HIS HONOUR: Yes.
65 MS COOMBES: If there was a term then it's - - -
66 HIS HONOUR: I just didn't want it disappearing into the dark.
67 MS COOMBES: Of course, yes.
68 HIS HONOUR: If you know what I mean?
69
MS COOMBES: But because it's not a combination order, I don't think
Your Honour needs to do that.
70 HIS HONOUR: No, it's not a combination order. All right.
71 MS COOMBES: It's just that Your Honour's taken that into the sentencing - - -
72 HIS HONOUR: I'll take it, I have taken it into account, but I'll remove that from the order.
73 MS COOMBES: Thank you, Your Honour.
74 HIS HONOUR: If that's the appropriate course?
75 MS COOMBES: I would suggest it is.
76 HIS HONOUR: I just didn't want it, in case something goes pear-shaped with his CCO, that it's forgotten.
77 MS COOMBES: No. And Your Honour's made that clear in Your Honour's sentencing remarks, as part of Your Honour's consideration, yes, thank you.
78 HIS HONOUR: All right, I'll take that out. Right, thank you. I've just been informed there is a, it never formed part of this plea, but there was a related summary charge of dealing with the proceeds of crime. I'll just get it printed off.
79 MS COOMBES: Yes, thank you, Your Honour.
80 HIS HONOUR: I don't know.
81 MS COOMBES: Well, it's not part of the plea.
82 HIS HONOUR: It wasn't here on the day we did the plea.
83 MS COOMBES: No, and - - -
84 HIS HONOUR: Well sorry, as far as I know, it must've been but - right, so yes Madam Prosecutor there's no notice that it was to be brought up here, but somehow it's been uplifted. I'll just, do you know anything about this?
85 MS PHILLIPS: I'm unsure Your Honour, I'm happy to look into it and if it is showing on the notification of committal, then I'll file a notice as soon as possible to ensure that it's reflected that it'll be withdrawn.
86 HIS HONOUR: Withdrawn, yes.
87 MS PHILLIPS: Yes.
88 HIS HONOUR: All right, thank you. If there's any difficulty about that just contact my associate and come back and I'll straighten it out.
89 MS COOMBES: Yes, we'll do so, Your Honour.
90 MS PHILLIPS: Yes, Your Honour.
91 HIS HONOUR: Sorry, you can take a seat thank you, officer.
92
MS COOMBES: I shouldn't say this, no issue with the forfeiture of disposal
Your Honour, if I haven't made that clear already, but yes, that amendment, yes.
93 HIS HONOUR: It sounds like the computer's running the court now. I've just been informed that the orders can't be made here until that charge is withdrawn. So, are you in a position just to announce it's withdrawn and then I'll make an order it's withdrawn.
94 MS PHILLIPS: Yes, Your Honour. Can I confirm the number of the charge?
95 HIS HONOUR: Thank you. Summary Charge 11 is withdrawn. Thank you.
96 MS PHILLIPS: Yes, Your Honour, prosecution withdraws Summary Charge 11.
97 HIS HONOUR: Yes, thank you. Wait until AI takes over.
98
MS COOMBES: Well I was actually having that exact thought, because
Your Honour had said that. Let's hope that doesn't - - -
99 HIS HONOUR: I wonder what if anything is put in this seat when AI takes over.
100
MS COOMBES: I just can't see a day where that happens Your Honour,
but - - -
101 HIS HONOUR: Who knows.
102 MS COOMBES: Let's hope not.
103 HIS HONOUR: Madam Prosecutor for my edification how does a charge from the committal court, be sent here without a notice of uplift?
104 MS PHILLIPS: So, normally it's on the notification of committal that the magistrate completes.
105 HIS HONOUR: Yes.
106 MS PHILLIPS: And then we have a copy of that notice and we make the formal notice of related summary offences indicating what we're seeking to do with each charge.
107 HIS HONOUR: I see.
108 MS PHILLIPS: But if they are withdrawn at the committal, then that's noted on the notification of committal. Yes.
109 HIS HONOUR: All right.
110 MS PHILLIPS: Which I'm just trying to locate now.
111 HIS HONOUR: Yes, thank you. Ms Coombes if you could just attend with your client with the CCO and if he agrees to it, he can sign it.
112 MS COOMBES: Yes, thank you, Your Honour.
113 HIS HONOUR: Thank you.
114 Mr Caraku, I've give your counsel two copies of that Community Corrections Order, one's for her, for her records. The other one's for you. You can stick it up on the inside of your cupboard door of your closet or wherever you keep your clothes, so that every day you get up and to get dressed you'll see and have a reminder of what your obligations are for the next two years from this day. Otherwise, good luck and stay out of trouble here okay?
115 OFFENDER: Thank you, Your Honour.
116 MS COOMBES: May it please the court, Your Honour.
117 HIS HONOUR: Thank you very much counsel and thank you Ms Coombes. He's free to step out of there.
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