Director of Public Prosecutions v Djokaj

[2019] VCC 1070

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00446

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUSH DJOKAJ

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2019
DATE OF SENTENCE:	11 July 2019
CASE MAY BE CITED AS:	DPP v Djokaj
MEDIUM NEUTRAL CITATION:	[2019] VCC 1070

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Early plea – lower level offending - cultivation offence lower to mid-range – No relevant prior convictions – difficult family history –  parsimony – community interest in rehabilitation
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v McKee [2003] VSCA 16; R v Henry [1999] 46 NSWLR 346
Sentence: Two Year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Brennan	Office of Public Prosecutions
For the Accused	Mr M. Tovey QC	Melasecca Kelly & Zayler

HIS HONOUR:

1Mr Djokaj, you have pleaded guilty to one count of possession of a drug of dependence, cocaine[1]; one count of trafficking in a drug of dependence, cannabis.[2]  The charge of possession of cocaine was between 4 and 5 October 2018. The trafficking cannabis, 25 October 2018.  There is a further count of cultivating a narcotic plant, namely cannabis, 12 December 2018[3] and theft of electricity on 12 December 2018 from Powercor.[4]  There are two related summary counts.  One of possession of a prohibited weapon, namely an extendable baton and one count of dealing with property suspected of being the proceeds of crime, namely $2,150 in cash.

[1] contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981

[2] contrary to s 71 AC of the Drugs, Poisons and Controlled Substances Act 1981

[3] contrary to s 72B of the Drugs,Poisons and Controlled Substances Act 1981

[4] contrary to s 74 of the Crimes Act 1958

2The relevant penalties were set out by the learned Crown prosecutor this morning and I incorporate them by reference.

3The circumstances of the offending were set out this morning on the Crown opening, which was read in open Court and I incorporate them by reference.

4Due to some good police work associated with a serious cocaine dealer the police installed a listening device and an optical device in an apartment. From that they identified you as being present in the apartment snorting lines of cocaine on 4 and 5 October.  The next day they observed you with a backpack containing cannabis broken up into packs. Following that, when you returned there was a conversation on 26 October about the fact that Mr Ishac had sold some cannabis and he handed you $2,000, which the prosecution says was for the sale of a pound of cannabis.  That constitutes the offence of trafficking in a drug of dependence, namely cannabis.

5Then the police on 12 December, raided your home and they found in at the back of the garage or a back shed, a hydroponic setup for growing cannabis with four large mature plants, in four pots and six smaller cannabis plants, effectively seedlings.  The total weight was 25.32 kilograms.  It was a sophisticated hydroponic setup with a bypass, tallboys or drums of the fertiliser and transformers.  In a safe there was $2,150 found and the baton.  That constitutes the charge of cultivating of cannabis, the summary charges of possession of the baton and possession of the property suspected of being proceeds of crime, as well as a black iPhone.

6You were arrested and you spent two days in custody. You gave a no-comment record of interview.  You were bailed and the matter was then the subject of a filing hearing.  There was a committal mention on 17 January and there was a straight hand-up brief.  The matter resolved on 1 March to a plea and the hearing was this morning.

Assessing the seriousness of the offending. 

7The most serious charges you face are the trafficking of the cannabis and the cultivation of the cannabis.  I would assess the seriousness of the trafficking of the cannabis as a lower level.  It did involve a pound of cannabis worth $2,000, which is higher than some cases we see here but lower than a number of others.

8In relation to the cultivation of the cannabis, that again was lower than a sophisticated factory type, whole house dedicated operation, but above the small backyard operations that are sometimes seen. This offending is in the, mid to lower-range of cultivation offences and the amount involved is relatively low on the scale of things, even though the four plants were mature.  It is in not clear whether they had been harvested or not.

9You have admitted you had one prior court appearance, in 2015. This involved a lower level assault, where you were charged with the offence of recklessly causing injury on 12 May 2015. You were convicted and given 150 hours community work.  So no prior offending of a similar nature to drug offending - you are a 31 year old coming before the Court for serious offending.

10On a daily basis the courts in this state deal with offenders who have never had a father figure in their life.  The prisoner in this case on the unchallenged evidence provided by his counsel has a domineering father whose involvement in his life to date has blighted and stunted his emotional development such that in his mid-20s he was unable to resist peer pressure to use cannabis, and then subsequently cocaine. This further led to the cultivation of cannabis and trafficking of that drug to facilitate his cocaine habit.

11The evidence before the Court is that the arrest of the prisoner has been a
wake-up call for him and allowed him, for the first time, to seek assistance to address the underlying causes of his addiction and his descent into criminality, as well as to gain insights into his own personality flaws.

12The issue in sentencing the prisoner is whether in circumstances where the expert opinion before the Court indicates that he has what is described as a dependent personality disorder, and where that disorder contributed to his criminality, and in the period since his arrest he has commenced on what is said to be a long road to reclamation, do the interests of justice require that the incipient path to rehabilitation be stalled or halted by a term of imprisonment. Or whether the interests of the community are better served in this particular case by a disposition that focuses on his continued rehabilitation, notwithstanding the seriousness of the offending.

13In choosing between these two paths, Courts are guided by appropriate evidence.  The community would not expect otherwise.

14Here the court has been assisted by the reports and evidence of two witnesses, Mr Armstrong, consultant psychologist[5], and Ms Brown[6], drug and alcohol therapist who have opined as to the progress of the prisoner and his prospects of rehabilitation from his drug addiction.  Relevant to the picture were a bundle of clear drug screens provided by the prisoner.[7]  Also before the court was a report from the prisoner’s clinical psychologist, Ms Falan.[8]  She indicates that in the sessions that she had been involved, with the prisoner, since taking over from another counsellor, the prisoner has consistently adhered to the treatment recommendations while engaging actively and openly in the therapeutic process with a demonstrated commitment to his own mental and emotional well-being. She recommends ongoing treatment for the next

[5] Exhibit 5 on the plea.

[6] Exhibit 4 on the plea.

[7] Exhibit 6 on the plea.

[8] Exhibit 3 on the plea.

6 to 12 months as his mental health and future well-being would be adversely affected should he be unable to continue therapy.

15The evidence of Mr Armstrong was powerful and cogent.  He has a wide and deep experience in treatment of drug addicts and in his report he links the prisoner’s background to his offending in a number of ways.  He said,

'Your client presents with a chronically disturbed childhood characterised by emotional and physical abuse, allegedly perpetrated by his alcoholic father.  What is poignant and compelling about your client's case is that the alleged abuse continued into his adulthood.  A normal part of personality and identify development is that a young person individuates or separates from his family in late adolescence.  While your client recalls that he hate his father he has remained under his psychological control well into his adulthood'.

16He also notes that,

'Your client's drug addiction is entwined within a disturbed personality.  Drug addiction was in my opinion maintained on the premise of
self-medication'.

17And he opines that you have a dependent personality disorder.  He goes on,

'A legacy of your client's exposure to familial abuse is that as a young adult he became disabled by disappointments, boundaries and separation from significant others in his life.  Your client could not function alone and whilst he clung to significant others to have this need met he also became heavily dependent on cannabis and cocaine to counter deficits in his identity,
self-esteem, self-confidence and his capacity to regulate extreme anxiety and dysphoria'.

18And then identifies that you have cannabis and stimulant use disorder.  He then goes on to canvas your prospects of rehabilitation saying,

'Your client presents with genuine insight but he has suffered a serious drug problem'.

19There was also recognition that you are in early remission and he goes onto say that you currently sit in what would be defined as a maintenance stage of recovery.  He states that,

'Persons with your type of dependent personality are good candidates for treatment engagement and that you recognise the wrongfulness of your conduct'.

20In his oral evidence he confirms that he regards your rehabilitation prospects as good.

21Ms Brown in her oral evidence, consistent with her report noted that she had developed a strong therapeutic relationship and that the prisoner had an intrinsic motivation to change. She notes you have better prospects of rehabilitation than most of the spectrum of people she has seen.

22Mr Tovey QC in a comprehensive submission asked the Court to engage in an act of parsimony and not impose a sentence of imprisonment on his client.  This is on the basis that the community would be best served by a rehabilitative disposition, particularly in circumstances where there had been an early plea of guilty, accompanied by remorse, and that the prisoner had taken extensive action to commit to rehabilitation since his arrest.

23The learned Crown prosecutor submitted that a combination sentence was in range.  He put that addiction could not reduce moral culpability for the offending although it may provide an explanation.  Further, general deterrence was a significant sentencing factor for this type of offending.

24In his submission Mr Tovey footnoted Fox v Freiberg[9], third edition, and in that at paragraph 4.95 there is a quote from Simpson J in the New South Wales Court of Criminal Appeal as follows,

'I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs.  The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control.  They may or may not be combined with a vulnerable personality or even a weakness of character.  Many drug offenders have not had the life experiences or normal developmental path that permit a conclusion that the decision to take drugs or the decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood'.[10]

[9]Arie Freiberg and Richard George Fox, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (Thompson Reuters, 3rd ed, 2014).

[10]R v Henry [1999] 46 NSWLR 346 [338]

25The text goes on,

'Justice Simpson's comments recognise that addiction may be the product if a dysfunctional family background, economic disadvantage, poor education, sexual or other forms of abuse or other social or psychological problems.  In such cases the addiction may provide the court with a broader understanding of the offender’s character and motivation for committing the offence.  It may be the later factors rather than the addiction itself that provides the reasons for mitigation.'[11]

[11] Above n9, 303-304

26And the text goes on to say the age of the offender may be relevant.

27The text footnotes R v McKee [2003] VSCA 16, where Buchanan JA at paragraph 13 says after referring to a quote from Spigelman CJ, says,

'Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequence of that choice'.

28Buchanan JA goes on,

'The extent to which a decision to experiment with drugs is freely made in my view bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs.  Age is relevant to the question as Spigelman J acknowledged.  I would add that in the case of adults despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.  An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated.  In my view a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or has been treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender'.[12]

[12]R v McKee [2003] VSCA 16, [13]

29What Buchanan JA is really alluding to is what is set out in the reports of
Mr Armstrong and Ms Brown, that you had this distorted personality as a result of overbearing involvement in your life, right through to your adulthood by your alcoholic father.

30So weighing all the competing considerations I have reached the view that the community interest would be best served by a disposition that will advance your rehabilitation, and effectively give you this one opportunity to resume a
law-abiding life.  The Court of Appeal has said in a number of cases that if the sentencing Court is at all able to, it is best not to stall rehabilitation when an offender is on the road to such rehabilitation. That is a matter that I do take into account and I also take into account that often the road to rehabilitation from a drug addiction is a rocky one.  That was really inferred by some of the evidence from Mr Armstrong and Ms Brown.

31So weighing all those considerations I am prepared to accede to the submission of Mr Tovey and to impose a Community Corrections Order. I am proposing, subject your consent, to impose a two year Community Corrections Order with the condition that you engage in drug rehabilitation and counselling, mental health rehabilitation, that you continue with your current counsellor and with your current psychologist, unless you advise the Office of Corrections otherwise, and that you be under Judicial Supervision.

32So I will stand down while I hand the proposed order to counsel and they can consider it and you, Mr Tovey, can discuss it with your client and get him to sign it.

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