Director of Public Prosecutions v Drenica
[2023] VCC 1430
•15 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-00341
Indictment M10069344
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MERGIN DRENICA |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 July and 14 August 2023 | |
DATE OF SENTENCE: | 15 August 2023 | |
CASE MAY BE CITED AS: | DPP v Drenica | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1430 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Two charges cultivate cannabis simpliciter relating to separate crops – one charge of trafficking cannabis based on quantity located at second cultivation - significant quantities involved in cultivations - offending for profit in context of financial difficulties - good character - mature offender - submission of exceptional hardship to third party rejected.
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton v The Queen [2014] VSCA 342; R v Verdins [2007] VSCA 102; Markovic v The Queen [2010] VSCA 105
Sentence: Combination sentence of 8 months imprisonment and a community correction order for 12 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G. Chisholm | Bowler & Co |
HIS HONOUR:
1Mergin Drenica, you have pleaded guilty to two charges of cultivating a narcotic plant, which carries a maximum penalty of 15 years' imprisonment; one charge of trafficking cannabis, which also has a maximum penalty of 15 years' imprisonment; and one charge of recklessly dealing with the proceeds of crime, which has a maximum penalty of 10 years' imprisonment.
2At the time of the offending, you were 43 years old. You are now 46 years old.
3On 10 September 2020, police attended at 1/31 Bruce Street in Dandenong to execute a search warrant. The registered owner of the property is a person named Xhavit Meta whom you knew through the Albanian community. He had been renting the property out since 2018, but according to the prosecution opening, had never rented the property to you.
4On searching the premises, police found a hydroponic cannabis crop spread over several rooms. In total across the rooms, police found 146 cannabis plants weighing a total of 18.12 kilograms. There was an electrical bypass installed but it is not suggested that you were responsible for that.
5Your DNA was found on cigarette butts in an ashtray in the kitchen. Your fingerprints were found on a water bottle inside the premises. A receipt from Woolworths in Dandenong South relating to the purchase of items found within the premises was able to be matched with CCTV footage from Woolworths, where you can be seen purchasing the various items. You were also connected to the premises through your motor vehicle, a Volkswagen Caddy. That vehicle had been towed from the Bruce Street address as far back as 7 May 2020.
6In respect of Charge 2, police executed a search warrant at your home address in Sanders Road, Frankston, on 11 January 2021.
7Again, spread over the residence was a hydroponic cannabis crop. In total, there were 93 plants weighing 98.25 kilograms. This amount is the basis of Charge 2, cultivating a narcotic plant.
8In your Volkswagen Caddy, police found 2.23 kilograms of dried cannabis buds in five plastic bags. That is the basis of Charge 3, trafficking. The prosecution case is that the cannabis was in your possession for sale.
9Police located $27,250 in cash inside a zip pouch underneath your mattress. This is the basis of Charge 4, recklessly dealing in the proceeds of crime.
10You were arrested and interviewed. You made a 'no comment' interview.
11Although the amount of cannabis found at both premises exceeded the commercial quantity, you are not charged with cultivating a commercial quantity, which represents an acceptance by the prosecution that you did not have the mens rea or the awareness that the quantities cultivated exceeded the commercial quantity threshold, or at least that could not be proven beyond reasonable doubt.
12You pleaded guilty to these charges on 2 September 2022, following a case assessment hearing in this Court which took place in August 2022. You were in custody for 42 days after your arrest. You were granted bail on 22 February 2021. You have not been in any further trouble since your release on bail.
13These are serious offences with substantial maximum penalties. Each cultivation attracts a maximum penalty of 15 years. Mr Chisholm, during his detailed plea on your behalf, emphasised that I should not inflate the sentences to be imposed because the quantity of cannabis at each address was greater than the commercial quantity; in essence, he was submitting I must not sentence you as though you have pleaded guilty to cultivating a commercial quantity. I will not do that. However, the quantity located at each address is relevant to the assessment of the gravity of these instances of cultivation simpliciter. The quantity involved was very high for an offence of cultivation simpliciter, above the commercial quantity by a number of plants at the Bruce Street address and well above the commercial quantity by weight at your residential property. Both are serious examples of a cultivate simpliciter offence.
14At the first address in Bruce Street, the cultivation involved 146 plants. The setup was a hydroponic operation which required ongoing supervision involving the performance of multiple tasks. I have been told that you were to receive a financial reward for your role in looking after this crop. It is not suggested anyone else was involved in looking after the crop. You had been associated with that address for some time prior to 10 September 2020, based on the evidence that your car was towed from that address in May, although it is not clear how long you had played an active role in that cultivation or indeed how long since the cultivation had been established. Although you are charged relating to the day the search warrant was executed the context of the offending is that you had an ongoing involvement with the crop.
15The prosecution, when asked, submitted that they could not assert that you were a principal in respect of this crop. It is not argued by the prosecution that you funded the set up or stood to gain directly from the sale of the product grown at that address. However, on the facts before me you were playing an integral role in attending to the tasks necessary to produce a successful crop in a suburban greenhouse which was obviously being produced for profit. Given the number of plants the potential existed for a high value cultivation.
16Close in time to your involvement in that first cultivation, you were growing a substantial amount of cannabis in your own house, which is unusual in greenhouse cultivations, and I accept shows some lack of sophistication. Given the maturity of this crop you must have either been growing that crop at the same time as the Bruce Street crop or you started it soon after. Mr Chisholm submitted that you were not a principal in relation to the crop at your own house; rather, you were being paid a fee to grow the marijuana. Based on your instructions he submitted that the $27,250 found in your bedroom was payment for cultivating cannabis at your own house.
17However, you made a 'no comment' record of interview in this matter and gave no explanation as to how you became involved in the offending. That is understandable but there is no evidence before me about the circumstances in which you came to be growing this crop or precisely how you came to be in possession of the cash.
18I sentence you on the basis that in your own house you hydroponically cultivated a significant crop, and you were in possession of dried cannabis for sale.
19You also had the $27,250 which you accept was the proceeds of crime. I infer this money was derived from drug-related activity and there has been no submission that I should find otherwise. Exactly how you came to be in possession of that money, I do not know, other than that it was in circumstances where you knew the money was probably the proceeds of crime.
20In the circumstances I am satisfied you were playing a central role in cultivating the crop at your residence and you were doing so for personal gain. Whether you were doing so at the behest of others or with others is not entirely clear; it may be that you were, but I have no evidence about that one way or the other.
21In respect of this second crop, I infer that you harvested at least some of the crop represented by the amounts in the plastic bags, aware that this cannabis was to be sold.
22Looking at the facts overall, you involved yourself in two reasonably substantial cultivations to make money. You were indispensable to the success of both crops. Your moral culpability is therefore significant. Plainly, principles of general deterrence and denunciation have importance in the sentencing process in this case.
Personal circumstances
23Your ethnic background is Albanian, but you were born and raised in Melbourne. You have two older sisters and one younger brother. When you were approximately five years old, your parents returned to Kosovo, and you lived there for 10 years. In 1993, your family decided to return to Australia. Your parents left to be closer to other family members and because of the economic situation in Kosovo in the leadup to the war.
24You were 16 years old when you came back to Australia. Your English was poor and you struggled to adjust but soon you obtained jobs in agriculture and you worked in the poultry industry for several years. In 2000 you returned to Kosovo, where you met your wife, Zemirje. You married her in Kosovo and returned to Australia to work out her residency situation. She joined you a year later. You have three children with her: a 21-year-old son, a 17-year-old daughter and a seven-year-old daughter.
25Between 2003 and 2008, you lived in Ballarat and worked on an egg farm. You then returned to Kosovo between 2008 and 2010 and came back to Australia in 2012. You purchased an egg farm near Swan Hill in 2013, which you successfully ran until 2019. Mr Chisholm has tendered financial documents which establish you have a mortgage of $673,214 in relation to that 26-acre property, secured against your residential property. The business ceased to be profitable in 2019 because of an increase in chicken feed prices due to drought. I am told that you did not have the capital to ride out this downturn in the industry. The offending in this case is said to have taken place once the egg farm was no longer profitable.
26You own the family home in Frankston. I am told your parents and your brother also have an interest in the property.
27Since you were released on bail, you have been working as a truck driver for Swift Taxi Trucks and Couriers. I have been provided with a reference from the general manager of Swift, Mr Adrian Vuniqi. He is a friend of yours. You are making more than $200,000 a year in that employment, from which you meet the mortgage payments in respect of the Swan Hill property. Mr Chisholm tendered documents which establish your income.
28I have been provided with a psychological assessment report from Mr Mathew Staios, who says you have a psychosocial history which is complex and characterised by a longstanding depressive disorder and anxiety in the context of supporting your wife, who has a complex post-traumatic stress disorder. Mr Staios says that you have taken on a longstanding caregiving role for your wife. Her post traumatic stress disorder is related to her experiences in Kosovo during the war. Your depressive disorder and anxiety arise from the weight of having to provide care to your wife. Additionally, looking after the needs of your children and financial pressure has contributed to your depression. You told Mr Staios the offending was motivated by significant financial stress and the fear of losing your home through not being able to make mortgage payments on the Swan Hill property. Mr Staios says in his report that your psychological predispositions will be further aggravated by a term of imprisonment which would be particularly onerous for you relative to people without your psychological vulnerability.
29Based on the material in the psychological report, Mr Chisholm submitted that I should find your moral culpability is reduced and moderate general and specific deterrence; and further that Verdin’s principles five and six are applicable.[1] I am not satisfied that your moral culpability is reduced by your psychological state and nor am I satisfied that the evidence supports a reduction in general or specific deterrence by reason of your psychological conditions.
[1] R v Verdins [2007] VSCA 102
30That is not to say that your personal circumstances, which include your psychological issues, are irrelevant to the weight to be given to these sentencing principles (the financial pressure you were under in the lead up to the offences is a relevant consideration in assessing your moral culpability and your psychological conditions are a background factor to your decision to offend). However, in a case where you made a deliberate decision to offend for money, I am not satisfied that the relationship between your mental health and the offending is such that your moral culpability is reduced or that your mental health conditions alone justify a reduction in general and specific deterrence.
31However, I accept, based on the material, that Verdin’s principles five and six apply, and I have taken those matters into account as a moderating factor in this case.
32Mr Chisholm submitted that a period of imprisonment will create exceptional hardship for your wife and family. He relied on a combination of circumstances.
33He pointed to the financial impact of incarceration on your wife and family which includes the risk that a failure to make mortgage repayments on the Swan Hill property will put the family home in jeopardy. He tendered bank records in relation to the property near Swan Hill and a council valuation of the property said to be $300,000. As I said earlier in these remarks, you owe $673,214 on that property, secured against the family home which you own with your brother and father. The family home, as I understand it, has a conservative council valuation of around 1.3 million. There is no mortgage in relation to the family home.
34I accept that a period of imprisonment leaves your wife and children in a precarious financial position and that there is a risk of default on the Swan Hill property. There is, however, a savings buffer of approximately $24,000 which could be used to cover the mortgage payments for some months, and your wife was supported to an extent by your brother during the period you were in custody after being charged. As I understand it, they are also guarantors in respect of the loan, and they may have to make some contribution whilst you are in custody.
35Mr Chisholm also relied on the role you have in supporting your wife's mental health. Your wife was called to give evidence. She gave evidence that she has read the psychological report written in 2019 by Mr Linh Phan and said in evidence she still suffers from the symptoms of PTSD and anxiety described in that report. Mr Phan saw your wife in 2018 and in July 2019 to provide therapeutic treatment after referral from her general practitioner. The report deals with her traumatic history, including witnessing acts of violence and rape during the war in Kosovo. The report seems to have been written to support her application for Australian citizenship. The report describes the existence of clinically significant symptoms of distress and impairment to your wife's health, daily functioning, and quality of life.
36Your wife gave some evidence about the trauma she still suffers from her experiences in Kosovo during the war. She gave evidence that you are the person that she talks to about her mental health struggles. She does not currently see a psychologist or counsellor. She said she does talk to her children at times but more often to you.
37The prosecution submitted that these matters do not rise to the threshold of exceptional circumstances.
38Hardship to a third party because of imprisonment is not normally a mitigating circumstance but the court has the discretion to mitigate sentence when that sentence causes such hardship, and it is satisfied there are exceptional circumstances. Cogent evidence that imprisonment would expose your wife and children to exceptional hardship is required. Exceptional circumstances may be established by a combination of lesser hardships to multiple family members.
39In the case of Markovic the Court of Appeal gave the following reasons for affirming the exceptional circumstances test:
(1) 'Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy;
(2) Properly understood, therefore, the purpose and effect of the 'exceptional circumstances' test is to limit the availability of the court's discretion to exercise mercy on that ground;
(3) Accordingly, there can be no 'residual discretion' to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional; and
(4) The effect on the offender of hardship caused to family members by his imprisonment raises different considerations, to which the 'exceptional circumstances' test has no application'[2]
[2] Markovic v The Queen [2010] VSCA 105
40The court went on to explain the requirement of exceptional circumstances as follows:
'Whether or not in any particular case family hardship gives rise to exceptional circumstances must be a question of fact and degree. In answering that question, it is necessary to have regard to the admonition often stated in the authorities that such cases will be rare. A sentencing judge should also have regard to the many examples in the decided cases of undoubted hardship which have nonetheless been held by appellate courts to fall short of exceptional circumstances.'
41The court also said:
'It is only in an exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.'
42I do not accept that the circumstances relied on, either individually or in combination, amount to exceptional circumstances as required by the authorities. It is a stringent requirement. I accept that there is no doubt imprisonment will cause hardship to your wife and your family, but I am not satisfied such hardship meets the test of exceptional hardship.
43I accept your wife has ongoing mental health issues and that she is a somewhat isolated person because of her language difficulties and that you provide significant support to her. However, the psychological report relied on is four years old and she has not been seeing a psychologist or a counsellor since then. I have no current expert evidence before me relating to her mental state. Although she gave evidence that she still suffers from her mental health conditions, without any current psychological material it is not possible to know the nature and extent of such conditions and therefore make an informed assessment of the importance of your support.
44Given your wife has sought medical assistance in the past for her mental health problems, presumably further medical assistance in the form of her general practitioner or a referral to a psychologist remains an option. Your wife also gave evidence that she can talk to her children to support her mental health.
45In her evidence, it was my impression that your wife was just as concerned of the financial impact on the family over the period of imprisonment as she was at the prospect of losing your support for her mental health. She said she does not earn enough money to support the family. The financial consequences here are very unfortunate but not unusual when someone in your position receives a custodial sentence. Of course, I must consider the financial circumstances in combination with the other matters raised but, in the end, I am not satisfied that what has been submitted meets the stringent test required by the authorities.
46Whilst I do not accept that the circumstances in this case are exceptional, I do accept that the situation of your wife and family (including the family's financial position) while you are in prison will weigh very heavily on you and significantly increase the burden of your imprisonment and I have moderated the sentence that I will impose to reflect this.
47You pleaded guilty to the charges after a case conference in the County Court. The matter resolved to cultivate simpliciter whereas you had been committed for trial on cultivate commercial quantity charges. Accordingly, this was a plea at an early opportunity having regard to the resolution. I accept your guilty plea indicates remorse for your criminal behaviour. Your guilty plea also indicates a willingness to facilitate the course of justice. The utilitarian value of your plea is significant. You have spared the prosecution and the court the time and resources involved in conducting a trial for these charges. The utilitarian value of your plea is greater in the current circumstances where this court still faces a backlog of trials arising from the suspension of its operations during the pandemic. You must receive a palpable discount for your guilty plea.
48Your counsel, Mr Chisholm, submitted that in the circumstances of this case a combination sentence involving time served, 42 days, followed by a community correction order was an appropriate penalty. He relied on the case of Boulton,[3] and submitted that a proper application of competing sentencing considerations does not inevitably lead to the conclusion that a further period of imprisonment is necessary given the mitigating factors.
[3]Boulton v The Queen [2014] VSCA 342
49The prosecutor, Mr Teo, submitted that whilst a combination sentence of imprisonment and a community correction order is within range, the time served of 42 days does not constitute a sufficient component of imprisonment in this case. He submitted that considerations of general and specific deterrence and denunciation and just punishment dictate a further period of imprisonment should be imposed.
50I ordered a community correction order assessment report. You were assessed as being a low risk of further offending and you are considered suitable for a community correction order.
51In sentencing you for this matter I must give emphasis to general and specific deterrence. In a case such as this where you have deliberately committed serious drug offences and prevalent offences to make money, general deterrence, that is, the need to send a message to like-minded members of the community, is an important sentencing factor. Specific deterrence (the need to send a message to you that further offending will receive punishment) although reduced by the time you have spent in custody on remand and because of your positive prospects of rehabilitation, must still be given some weight, as must denunciation and just punishment. That said, you have no prior convictions, you are employed, you have a family to look after, and for all those reasons I find that you have very good prospects of rehabilitation. Therefore, I must give weight to your rehabilitation and impose a sentence which as far as possible facilitates your rehabilitation.
52Balancing the competing sentencing principles, I have decided it is necessary for you to serve a further period in prison before being released back into the community on a community correction order. I have imposed a period which in my view is the minimum period I could reasonably impose for this offending.
53I will impose an aggregate sentence for two reasons: the offending in this case is a related series of events and because I am imposing a combination sentence where I have reduced the sentences to facilitate the correction order at the end of a period of imprisonment. If I have to re-sentence in this case at some point, I will impose individual sentences for the offences.
54For the offending in this case, the sentence I impose is an aggregate sentence of eight months, followed by a community correction order of 12 months. I am not ordering supervision because it was not recommended in the report. I will order unpaid community work of 160 hours, and treatment and rehabilitation with respect to your mental health; 40 hours of any such time devoted to treatment and rehabilitation can be deducted from the 160 hours.
55I indicate that 42 days of pre-sentence detention is to be deducted from the sentence that I have imposed.
56Pursuant to s6AAA of the Sentencing Act, I indicate that the sentence I would have imposed after trial is a sentence of two years and eight months imprisonment with a minimum of 22 months– or one year and ten months non parole.
57Now I will make the disposal order and the forfeiture order sought. Is there anything you need clarified?
58MR CHISHOLM: No, Your Honour, but can I request a notation on the custody order in respect to custody management.
59HIS HONOUR: Yes. Depression - - -
60MR CHISHOLM: Anxiety and persistent depression.
61HIS HONOUR: Yes, all right, I will - - -
62MR CHISHOLM: And it may assist the prison to have a copy of Staios' report. I know that's normally for parole - - -
63HIS HONOUR: Yes. So notation on the order is custody management issues include that Mr Drenica suffers from anxiety and persistent depression.
64MR CHISHOLM: And would it be appropriate – I know there was a 42 days to note first substantial time in custody, because it's a bit different going in - - -
65HIS HONOUR: Yes, and first - - -
66MR CHISHOLM: Custodial sentence.
67HIS HONOUR: First custodial sentence. Yes, I'll do that.
68MR CHISHOLM: Thank you, Your Honour. Nothing else.
69HIS HONOUR: Mr Drenica, you'll go into custody now. Sorry, I beg your pardon, I have to get Mr Drenica to sign the order. Mr Drenica, you have to consent to this community correction order, I have to get you to sign it now, all right.
70MR CHISHOLM: Your Honour, may I approach and I'll get - - -
71HIS HONOUR: Yes, you can approach. Do you consent to the order, Mr Drenica?
72OFFENDER: I do - - -
73HIS HONOUR: Yes, all right. I need to sign it, sorry, I jumped the gun. Just have a seat for a moment, Mr Drenica, I've signed the document. The way this works is this: if you were to breach this community corrections order, either by not performing the conditions or by re-offending, then you can be brought back before me, the whole order can be vacated, and I would have to re-sentence. Do you understand? And if I had to resentence it would be a longer period than eight months. So that's what happens if you breach.
74When your term is finished you have to attend Frankston Correctional Services within 48 hours. Thereafter, you have to complete the conditions of the order which is 160 hours and any treatment and rehabilitation they organise, focused on your mental health, you have to do that.
75You have to comply with any directions they give you, you cannot change your address without telling them and you cannot leave Victoria without telling them and you cannot get a new job without telling them. All those things are mandatory conditions of any correction order. Mr Chisholm will explain all this to you.
76MR CHISHOLM: Yes, Your Honour.
77HIS HONOUR: In addition, you've got the community work and the treatment and rehabilitation that they may organise for you. So that's the correction order, I have signed that. Having said that, Mr Drenica you can now go into custody. Thanks Mr Chisholm, thanks Mr Teo.
- - -
0
2
0