Director of Public Prosecutions v Djemal
[2019] VCC 966
•24 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00274
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EFKAN DJEMAL |
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| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 June 2019 |
| DATE OF SENTENCE: | 24 June 2019 |
| CASE MAY BE CITED AS: | DPP v Djemal |
| MEDIUM NEUTRAL CITATION: | [2019] VCC |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Heng | Office of Public Prosecutions |
| For the Accused | Mr N. Marcevski | Marcevski Lawyers |
HIS HONOUR:
1.Efkan Djemal, you've pleaded guilty to one charge of possession of substance, material, document or equipment for trafficking a drug of dependence, four charges of possession of a drug of dependence, one charge of possession of a trafficable quantity of unregistered firearms and one charge of non-prohibited person possess unregistered paintball marker and the related summary charges, Charge 5, possess a prohibited weapon, namely a Taser. Charge 6, store an unauthorised explosive, namely a smoke grenade. Charge 7, possess a controlled weapon without lawful excuse. Summary Charge 8, possess a prohibited weapon without an exemption, namely a slingshot. Summary Charge 9, possess a prohibited weapon without an exemption, namely a crossbow. Summary Charge 10, possess a prohibited weapon without an exemption, namely swords. Summary Charge 14, fail to store firearm in a manner provided. Summary Charge 19, possession of a poison, namely ephedrine.
2.These offences carry the following maximum penalties. Possession of substance, material, document or equipment for trafficking a drug of dependence, 10 years' imprisonment. Possessing a drug of dependence, five years' imprisonment or one years' imprisonment if not for a trafficking purpose and five penalty units for a small quantity of Cannabis-L(50 grams or under). Possess trafficable quantity of unregistered firearms, 1,200 penalty units or 10 years' imprisonment. Possess unregistered paintball marker, for first offence 120 penalty units or two years' imprisonment. Possess prohibited weapon, 240 penalty units or two years' imprisonment. Store unauthorised explosives, 100 penalty units. Possess controlled weapon, one years' imprisonment. Fail to store Category A or B longarm in the manner provided, 60 penalty units or 12 months' imprisonment. Possess Schedule 4 poison, 10 penalty units.
3.It is unnecessary for me to recount the facts of the matter in detail, as they are on transcript and contained in Exhibit 1, summary of prosecution opening. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor, which I shall now briefly summarise.
4.You were born on 4 July 1962 and you were aged 56 years at the time of the offending. At that time, you were residing with your family at 12 Shepherds Grove, Kings Park. You were unemployed due to health reasons but had previously worked as a concreter. On 24 May 2018, at 12.19 pm, you were intercepted by police on Ballarat Road, Deer Park. You were arrested and a pat down search was conducted. Police found a glass pipe for smoking methylamphetamine and a Ziplock bag containing a crystal substance in a glasses case inside your jacket.
5.At 12.43 pm that afternoon, two search warrants were executed at your home address in Kings Park. The search of your premises, both house and garage workshop area revealed the following items, including drugs identified following analysis of various items:
a.a) The scientific glassware, the equipment, solvents and chemicals, handwritten notes detailing a method for the recovery of iodine from iodine tinctures and the equipment listed in Schedule B of the indictment, all of which are used in a clandestine laboratory for the manufacture of methylamphetamine, Charge 1;
b.b) A quantity of MDA, 1.2 grams, and MDMA, 0.4 grams, Charge 2;
c.c) A quantity of methylamphetamine, 0.1 grams detected as washings on equipment used for manufacture, Charge 3;
d.d) A quantity of Cannabis-L, 4 grams, that's Charge 4;
e.e) A quantity of pseudoephedrine, 20.1 grams, Charge 5;
f.f) A quantity of ephedrine, 5.5 grams, Summary Charge 19;
g.g) A total of seven unregistered firearms, namely (i) 6-millimetre semi-automatic air-soft pistol; (ii) a 0.32-22 calibre six-shot starting pistol; (iii) 12-gauge open double barrel shotgun; (iv) 0.30-30 lever action repeating rifle; (v) a 0.177 air calibre break open air rifle; (vi) a 0.22 air calibre air rifle; (vii) a 0.171 air calibre break open air rifle, Charge 6. These firearms were found in three full-length lockers located with padlocks in the garage and not in a gun safe in your bedroom and were thus not stored securely in accordance with law, Summary Charge 14;
h.h) An unregistered paintball marker gun, Charge 7;
i.i) A Taser, summary Charge 5;
j.j) Two smoke grenades, summary Charge 6;
k.k) A quantity of knives, summary Charge 7;
l.l) A slingshot, summary Charge 8;
m.m) Two crossbows, summary Charge 9;
n.n) Ten swords and two machetes, summary Charge 10.
1.You were taken to Brimbank police station following your arrest on 24 May 2018. You made a no comment record of interview. You have been remanded in custody since that time. This matter resolved on 11 February 2019.
2.I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty, you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and costs of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty on the committal date, this was a relatively early stage in all the circumstances. I accept on all the material before me that you are genuinely remorseful.
3.I have been told something of your personal circumstances and these matters are set out in the outline of submissions for plea in mitigation tendered on your behalf. As stated, you are 56 years of age. You are a married man with three adult children. You are a concreter. You were born in Cyprus. You emigrated to Australia with your parents when you were 13 years of age. You completed the equivalent of Year 11 at technical school. You have a good work record having been a self-employed concreter for many years. You also worked in the security industry at licensed venues two to three nights per week for many years.
4.At age 48 years, you commenced using illicit drugs but your drug use has not been heavy. This offending was not to fund a drug habit. There was no explanation provided for this offending.
5.Since you have been remanded in custody, your wife has been diagnosed with cancer. She has been receiving treatment. This has been a great concern for you as you are in custody and I accept this has weighed heavily upon you. I accept that whilst you have been in custody, you have been using your time in a constructive manner, having worked and undertaken courses. You have held a firearms licence since you were 18 years of age. You have been a recreational hunter.
6.A number of references and testimonials were tendered on your behalf. Helen Cassar, your sister-in-law has known you since 1984. She describes you as a faithful and caring husband and a good family man. She and other family members have been shocked by your offending.
7.Franco Buonopane has known you for approximately 14 years. He states that this offending is totally out of character. Charlie Camilleri has known you for approximately 25 years. He describes your good work ethic.
8.You have good support from family and friends and good prospects of employment upon your eventual release from custody. I assess your prospects of rehabilitation as being good.
9.Against these matters in mitigation however your actions were very serious indeed. The most serious charge is Charge 1, possession of substance, material, document or equipment for trafficking a drug of dependence. Whilst these items were not set up as a clandestine laboratory and there is no evidence of trafficking or enrichment the sheer volume of items in your possession makes this a serious example of this offence. There were approximately 200 items in your possession in respect of Charge 1. I do not accept that this could be characterised as a low-level example of such offending.
10.There is understandable concern in respect of offences involving firearms. These are serious matters. You have a significant number of unregistered firearms. The charge of possession of a trafficable quantity of unregistered firearms, Charge 6, is however a fairly low-level example of this offence, as included in the firearms were four air rifles.
11.The firearms were stored in three full-length lockers with padlocks in the garage and not in the gun safe. You were also in possession of a large number of prohibited weapons.
12.You have admitted before me two prior convictions. On 19 August 1992, you were convicted and fined in respect of possess protected wildlife, possess restricted substance, handle stolen goods and obtain drug by fraud. On 25 November 1991, you were convicted and fined in respect of failing to store firearms in a proper manner. These prior matters occurred many years ago and are of limited relevance.
13.I have had regard to the principle of totality. There are many offences and I have imposed what I consider to be moderate sentences in all the circumstances with a degree of cumulation in respect to some of the more serious matters.
14.The pre-sentence detention has been agreed at 396 days.
15.As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is relevant given the nature and scope of this offending. General deterrence is also of considerable importance in a case such as this. The possession of substances, materials, documents or equipment for trafficking a drug of dependence is the most serious offence. Offending of this nature must be discouraged as must offending involving firearms and other weapons.
16.I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
17.Your counsel submitted that I ought to impose a combination sentence of effectively time served with a community corrections order. It was submitted on behalf of the prosecution that having regard to the serious nature of Charge 1 and the number and range of other offences, a community corrections order in combination with a sentence of imprisonment was not appropriate rather, a head sentence and non-parole period was required.
18.In my opinion, just punishment, denunciation and deterrence, even having regard to the matters put in mitigation require the imposition of an immediate term of imprisonment. Whilst a community corrections order is punitive in nature, its punitive element is insufficient to reflect the gravity of your offending. I am satisfied that I have no alternative but to impose a sentence of imprisonment and it is appropriate that there be a head sentence and non-parole period.
19.Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:
•• Charge 1, convicted and sentenced to two years' imprisonment;
•• Charge 2, convicted and sentenced to two months' imprisonment;
•• Charge 3, convicted and sentenced to 14 days' imprisonment;
•• Charge 4, convicted and fined $300;
•• Charge 5, convicted and sentenced to four months' imprisonment;
•• Charge 6, convicted and sentenced to 10 months' imprisonment;
•• Charge 7, convicted and sentenced to 3 months’ imprisonment;
•• Summary Charge 5, convicted and sentenced to two months' imprisonment;
•• Summary Charge 6, convicted and fined $400;
•• Summary Charge 7, convicted and sentenced to three months' imprisonment;
•• Summary Charge 8, convicted and sentenced to 14 days' imprisonment;
•• Summary Charge 9, convicted and sentenced to one months' imprisonment;
•• Summary Charge 10, convicted and sentenced to three months' imprisonment;
•• Summary Charge 14, convicted and sentenced to one months' imprisonment;
•• Summary Charge 19, convicted and fined $250.
1.I direct that one month of the sentence imposed on Charge 2, two months of the sentenced imposed on Charge 5, five months of the sentence imposed on Charge 6, one month of the sentence imposed on Charge 7, one month of the sentence imposed on summary Charge 5, one month of the sentence imposed on summary Charge 7 and one month of the sentence imposed on summary Charge 10 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Otherwise the sentences be served concurrently.
2.The total effective sentence is three years' imprisonment.
3.The non-parole period is the minimum term that justice requires you to serve having regard to all relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn, rehabilitation under conditional supervision.
4.In all the circumstances, I direct you serve a minimum term of two years before becoming eligible for parole.
5.As prescribed by s.18(4) of the Sentencing Act, I declare the period of time you have spent in custody is 396 days which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
6.I have made the two forfeiture orders sought by the prosecution and the disposal order sought by the prosecution.
7.Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is four years with a two and a half year non-parole period.
8.Do you want to double check the figures, Mr Marcevski?
9.MR MARCEVSKI: Yes, Your Honour, I agree that the figures are correct.
10.HIS HONOUR: Yes, thanks. Nothing else in terms of the formalities?
11.MS HENG: No, Your Honour.
12.HIS HONOUR: Thank you
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