Director of Public Prosecutions v Elezi

[2024] VCC 1362

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00271

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARBEN ELEZI

---

JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2024, 20 August 2024
DATE OF SENTENCE:	29 August 2024
CASE MAY BE CITED AS:	DPP v Elezi
MEDIUM NEUTRAL CITATION:	[2024] VCC 1362

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:   Cultivate commercial quantity of cannabis; cultivate cannabis; theft of electricity; possession of cannabis

Legislation Cited:  Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Cases Cited:Bugmy v The Queen (2013) 302 ALR 192; Worboyes v The Queen [2021] VSCA 169; Nguyen v R [2021] VSCA 211

Sentence:  4 years’ and 6 months’ imprisonment

NPP 2 years and 8 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Ms J. Willard	Ellinghaus & Lindner

HER HONOUR:

1Arben Elezi, you have pleaded guilty to the following offences, as a result of cultivating cannabis at two addresses, one in Hoppers Crossing and the other in Wyndham Vale.

CHARGES	OFFENCE	DATE	MAXIMUM PENALTY
Charge 1	Cultivate a commercial quantity of cannabis	Between 24 November 2021 and 6 April 2022	25 years’ imprisonment and/or 3,000 penalty units
Charge 2	Cultivate cannabis	Between 19 January 2022 and 6 April 2022	15 years’ imprisonment or 1,800 penalty units
Charge 3	Theft of electricity	Between 19 January 2022 and 6 April 2022	10 years’ imprisonment or 1,200 penalty units
Charge 4	Theft of electricity	Between 24 November 2021 and 6 April 2022	10 years’ imprisonment or 1,200 penalty units
Charge 5	Possession of cannabis	6 April 2022	5 years’ imprisonment or 400 penalty units

2The summary of prosecution opening has been provided to the court and is agreed to be an accurate account of events. A general summary of the facts is as follows:

3On 6 April 2022 at 8.10 am, a search warrant was executed at your family home in Hoppers Crossing where you resided.

4Your father was present at the time. Police located a sophisticated hydroponic system in the rear shed containing numerous cannabis plants.  A number of items were seized, including:

·        One electrical bypass located in a wall cavity near the meter box.

·        One suitcase containing three plastic bags of dried cannabis, weighing 1.32 kilograms.

·        A total of 28 cannabis plants in different stages of growth were located in three rooms of the rear shed.  Eighteen of the cannabis plants were small, four plants had been growing between seven to nine weeks and six plants had been growing between nine to 11 weeks. The total weight of the cannabis plants was 7.47 kilograms.

5The electrical bypass circuit supplied unmetered power for the hydroponic set up. The quantity of electricity stolen is calculated at 9,065 kilowatt hours which is valued at $2,921.65. 

6On the same day at 8.16 am, a search warrant was executed at an address in Wyndham Vale where no-one was present. You had been the sole tenant there since August 2021.  Police located a sophisticated hydroponic system in two bedrooms inside the residence and two rooms in the rear shed.  A number of items were seized including:

·        One electrical bypass located in the roof cavity; and

·        A total 49 cannabis plants in different stages of growth were located in the separate rooms. The 15 largest plants had been growing for approximately 17 to 19 weeks. Six plants had been growing for approximately 14 to 16 weeks. Four plants had been growing for approximately five to seven weeks, and three had been growing for approximately three to five weeks. The remaining 21 plants were small. The total weight of the cannabis plants was 120.61 kilograms.

7The electrical bypass circuit also supplied unmetered power at this address for the hydroponic set up. The quantity of electricity stolen is calculated at 42,241 kilowatt hours which is valued at $10,221.38.

8The weight of a commercial quantity of cannabis is not less than 25 kilograms. The amount of cannabis involved at the Wyndham Vale address was more than four and a half times the commercial quantity, measured by weight. The weight of a trafficable quantity of cannabis is 250 grams. The amount of cannabis cultivated in Hoppers Crossing was more than 29 times the traffickable quantity, measured by weight. You were also in possession of the dried cannabis, which weighed 1.32 kilograms. There has been no dispute that your possession of these drugs was related to trafficking.[1]

[1]        Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b) and (c).

9On 15 April 2022, you attended the Werribee police station by appointment and made a 'no comment' record of interview about the charged offences.

10On 20 July 2022, you arranged to participate in a further record of interview and made full admissions, where you detailed all aspects of your offending including:

·        You first cultivated cannabis at Wyndham Vale a couple of months after your lease commenced.

·        You began to cultivate cannabis at Hoppers Crossing in December 2021 when your family were overseas.

·        You started with seeds and seedlings obtained from a friend.  You tended to the plants yourself every day. 

·        You installed the hydroponic systems yourself with lights and water on timers and extractor fans.

·        You and your father installed CCTV cameras together at Wyndham Vale.  You installed the electrical bypasses yourself.

·        You intended to sell the cannabis to cover expenses because you were unemployed and had been borrowing money from friends.

·        You had not yet given away or sold any cannabis.  You had expected that some of the crop would succumb to disease.

·        Your parents were not aware of or involved in the cannabis cultivation or the electrical bypasses.

11You were charged by police with a number of offences on 15 April 2022 and were released on bail. You did not serve any pre-sentence detention until your bail was revoked when your plea commenced. You have now spent 80 days on remand for this matter.

12The crops were your own venture throughout the cultivation period. Your offending was objectively serious, as you were the owner, architect and sole operator over several growing spaces at both the addresses of this criminal enterprise. You have also admitted criminal responsibility for the theft of the electricity at each address. The stolen electricity was an integral factor in servicing both sophisticated hydroponic operations for the duration of the cultivation period. It enabled the crop to be cultivated in a discrete indoor location with less risk of detection than would otherwise have been the case and was of considerable value in total.  Your motive was to benefit financially.  The parties agree that your offending is at a mid-range of seriousness.

13You deeply regret your offending conduct. Your explanation was that your mental health deteriorated during Covid. You were unable to find employment and became in debt to your friends, as you had borrowed money from them. You eventually engaged in your offending to repay those debts. You admit that you rented the property in Wyndham Vale for the sole purpose of growing cannabis.  At the time of your arrest, you had not sold any cannabis and there is no evidence that you were financially enriched by your offending. You did not appreciate the seriousness of your offending or the potential impact on others. 

14Your matter resolved to a plea of guilty at a committal mention on 27 February 2023. The parties agree that your plea of guilty was entered at an early opportunity and has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.  The utilitarian benefit of your plea is enhanced by the fact that Worboyes[2] considerations were engaged at the time and results in a further sentencing benefit.  Your plea of guilty also demonstrates that you have accepted responsibility and shown remorse for your misconduct. I take that into account in your favour and will return to the aspect of remorse later in these reasons.

[2]        Worboyes v The Queen [2021] VSCA 169.

15Your plea hearing was initially listed in the County Court in July 2023 and then in February 2024. Both hearings were adjourned as you had difficulties with funding. Your plea eventually commenced on 11 June 2024. There is no dispute between the parties that the delay in finalising this case is a mitigating factor.  I accept that the overall delay of more than two years has been a source of stress and anxiety for you, notwithstanding that it was due to your financial position. You have carried the burden of uncertainty of your future over an extended period. You did not re-offend while on bail for more than two years, which you rely on to demonstrate some rehabilitation.  I take the delay into account and accept that it requires a level of moderate mitigation.

16You have admitted your criminal history, being seven previous appearances in the summary jurisdiction between November 2008 and May 2021. You have prior convictions for numerous driving offences including alcohol related matters. You have previously received two community corrections orders which have both included therapeutic treatment for alcohol abuse, one of which was not complied with.  You have not previously committed any drug related offences. The current incident demonstrates an escalation in the seriousness of your offending.

17I turn now to your personal circumstances. You were born in Kosovo in May 1985 and are now 39 years of age. You have not had an ongoing intimate relationship and do not have children.

18You are the oldest in a sibship of five and had a largely unremarkable early childhood. In 1998 the war erupted in Kosovo. Your father was conscripted, leaving your family to navigate the dangers without him. This upheaval marked the start of a tumultuous period for you, that had a significant impact on your family’s lifestyle. As a teenager you witnessed brutal atrocities and you saw a lot of people who were killed, including some that you knew. You recall an incident where your family was at risk, although they fortunately survived. Your family all fled to a refugee camp in Macedonia and remained there for 12 months. In 1999 your family relocated to Australia. You spent one year at an army camp in Wodonga, then relocated to Perth for one year before you returned to Melbourne where you have remained. You are now an Australian citizen.

19You had difficulty in adjusting here, as you felt a sense of alienation. You gained a limited education due to your language barrier. You were an inattentive student and left school at Year 10.

20You commenced work as a barista for two years and learnt to speak the English language while there. You have worked in a variety of industries, including hospitality, tiling, factory work and nightshift cleaning.  Your longest continuous employment was for two years at Dons Smallgoods, when you were 22 years of age.  You lost your job when the factory closed down and have only worked odd jobs since that time.  You have been unemployed for around the last six years, in receipt of Centrelink benefits and borrowed money from friends. 

21Your longstanding history of problematic alcohol use commenced when you were 16 years of age.  Your longest period of abstinence was for eight months in 2019 when you were provided with medication from your general practitioner.  Unfortunately, your consumption of alcohol recommenced and escalated to 40-50 beers per day during the COVID lockdown period.  You continued to consume alcohol at this level until just before your plea proceeded. You describe that alcohol makes you feel nice and relaxed as you try to forget things; it also helps with your sleep. Although you acknowledge that you drank a lot of alcohol at the relevant time, you deny any link between your use of alcohol and your offending behaviour. You expressed that you had no interest in alcohol counselling. You believe that you can stop yourself from drinking and your incarceration would deter any future criminal activity. You also disclosed that you have a history of gambling behaviour which you believe was 'an addiction like alcohol'.  You have not used illicit substances.

22You experienced withdrawal symptoms for several days after your arrival in custody, being night sweats, poor appetite and 'shakes'.  You have ongoing difficulties relaxing without consumption of alcohol and sleep can be difficult.  Prison healthcare files describe your presentation as being mild withdrawal symptoms for a short period following your remand. You have not sought psychological support for anxiety. While in custody you have not undertaken any educational or vocational programs.  You occasionally attend the gym or play soccer and often have felt bored.

23When you return to the community you would like to secure employment, regain your driver’s licence and repay the debts to your friends.  You identified that it would be important to stay away from drinking alcohol, although you had few plans about how this would be achieved.

24You describe having an amicable family relationship. Your parents were at your plea hearing and remain supportive of you. You are most fortunate in this regard. You intend to return to live with them upon your release. A letter has been provided to the court from a close friend who writes that you are a quiet and friendly person with a strong connection to your family. You are a heavy drinker and this dominates your life. You have expressed genuine remorse for your criminal actions and are concerned of the effect it has caused your family, as well as being anxious about the penalty.  

25I accept that you have shown remorse for your actions and that this is consistent with your plea of guilty.  Further, the reason that you arranged a second interview with police was to provide detailed aspects of your offending, which is also indicative of remorse. I am prepared to moderate your sentence to reflect that.

26Your father was also charged in relation to this matter.  He pleaded guilty at the Werribee Magistrates Court to one charge of being in possession of a drug of dependence and one charge of dealing with property suspected of being proceeds of crime. He received a fine without conviction. Given that he pleaded guilty to different offences and that his matters were dealt with summarily, there is no parity issue to consider in those circumstances.

27At your request, you were referred to Forensicare for a psychological assessment.  A report has been prepared for the court by Dr Caitlyn Robertson, dated 12 August 2024.  Your personal, criminal and mental health history have been summarised in the report. She writes that you did not appear to fully appreciate the seriousness of your offending and provided little insight into your reasons.  A psychometric assessment did not proceed. Proposed treatment that would assist you has been outlined at the end of the report.

28Dr Robertson made the following observations and findings:

·        your early childhood was free of significant deprivation or disadvantage. You were exposed to potentially traumatic events after the outbreak of war. Fortunately, your family were able to flee to safety;

·        your limited understanding of English appears to have impacted your integration into Australia, prolonging your experience of instability and exacerbating your learning difficulties;

·        you presented with a lifelong tendency towards avoidant coping. The instability of your adolescence is likely to have further reduced your opportunities for co-regulation and collaborative problem-solving;

·        you present with a reduced awareness of your internal experiences, underdeveloped problem-solving skills and a limited repertoire of strategies by which to regulate and manage life difficulties;

·        together with your childhood experiences of uncertainty, instability and fear, your underdeveloped self-regulation skills predispose you to cognitive rumination and anxiety and difficulties tolerating even minor disturbances in mood;

·        in this context, you turn to alcohol misuse and gambling to address problems and suppress discomfort;

·        your early chronic and high-level alcohol use appears likely to have exacerbated your difficulties with problem-solving and adaptive functioning by impacting the development of your brain and possibly causing a deterioration in your cognitive capacities;

·        your current offences are a maladaptive problem-solving strategy by which you were seeking to address your financial difficulties in the context of COVID-19 lockdowns. Your alcohol use escalated, you had few other options for employment and perceived a lack of alternatives to address your financial issues;

·        you meet the criteria for a severe alcohol use disorder currently in a controlled environment;

·        you do not meet the diagnostic criteria for any other mental health condition;

·        your low mood and anxiety are reactive to your current circumstances;

·        while you are sometimes troubled by memories of war, you denied significant physiological arousal or a sense of reliving these events. You do not meet a diagnostic criteria for a mental illness or post-traumatic stress disorder;

·        there is little to suggest you would experience a prison sentence as more burdensome than your peers.

29Your counsel has submitted that your life has been profoundly affected by war in Kosovo, your family’s displacement and the long-term psychological impact of these experiences. As a result, you developed an issue with consumption of alcohol during your teenage years as a coping mechanism.  There is no dispute from the prosecution that you faced significantly difficult experiences as a teenager which has had an effect on you over an extended period.

30The prosecution agrees with your counsel’s submission that the principles of Bugmy v The Queen[3] are enlivened in your case and that this is a moderate mitigating factor. I accept that the principles of Bugmy are applicable to the overall sentencing process here. I accept that your moral culpability is reduced. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counterbalanced, however, by the principle of community protection which remains a relevant sentencing consideration.

[3](2013) 249 CLR 571.

31You are assessed by Dr Robertson as a high risk of re-offending.  You require a high degree of intervention and support to address your criminogenic needs and to mitigate your risk for future offending. Your prospects are linked to your capacity to avoid relapse into alcoholism and to deal with your issues, which would benefit both you and the community.

32This is your first period of imprisonment. Given your age, your unrelated criminal history, your ongoing family support and the fact that you have not re-offended over the past two years, I accept that your prospects are not unreasonable.

33The offence of cultivate a commercial quantity of cannabis is a Category 2 offence.[4] The Act is prescriptive[5] in the type of penalty to impose in such a case, being a term of imprisonment unless one or more criteria are established. Your counsel did not seek to persuade the court that any of the criteria could be applied in your case.  A term of imprisonment, therefore, is the only appropriate disposition for this offence. Your counsel accepts that a sentence with a non-parole period is required. I intend to impose a longer period on parole that will allow your monitoring and supervision, to facilitate your rehabilitation.

[4]        Sentencing Act 1991 (Vic) s 3(1).

[5] Ibid s 5(2H).

34It is recognised that cannabis can cause great harm to those who use it, so impacting them, their families and the wider community.  The potential financial benefit to be gained by a commercial level of cultivation is relevant.  The amount of cannabis involved here significantly exceeded the threshold of a commercial quantity. Your offending was objectively serious, having regard to the sophisticated set up, your role in the enterprise and the duration of your offending. You admit that you were the principal offender. Notwithstanding your mitigating factors, I consider that a term of imprisonment for each count is the only appropriate disposition.

35General deterrence must be recognised as the principal sentencing consideration, given the gravity of the nature of cultivation of commercial quantities of cannabis.  It remains at the forefront of sentencing here, notwithstanding the application of Bugmy.  In the case of Nguyen v R, the court emphasised that while drug cultivation is a serious offence, commercial quantity cultivation is especially serious. The court stated:

'Factors relevant to assessing the seriousness of a particular cultivation offence include the offender’s role and the scale, sophistication and duration of a cultivation activity.  Because the offences are quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.'(footnote para 30)[6]

[6] [2021] VSCA 211 [30].

36I take into account the maximum penalty for these offences and current sentencing practices.  I have considered the more recent cases to which I was referred in the course of the plea.  The principle of totality is relevant and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  Balancing all these factors as best I can I sentence you as follows:

CHARGES	OFFENCE	SENTENCE	LEVEL OF CUMULATION
Charge 1	Cultivate a commercial quantity of cannabis	3 years and 6 months	BASE
Charge 2	Cultivate cannabis	1 year and 6 months	+6 months
Charge 3	Theft of electricity	4 months	+2 months
Charge 4	Theft of electricity	6 months	+ 4 months
Charge 5	Possession of cannabis	6 months	concurrent
TES	4 years and 6 months’ imprisonment
NPP	2 years and 8 monhts
PSD	80 days
S6AAA	6 years’ imprisonment with a non-parole period of 4 years
Forfeiture orders made without objection.

- - -