Director of Public Prosecutions v Emirali

[2016] VCC 285

Pages 1 - 1   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00433

DIRECTOR OF PUBLIC PROSECUTIONS

v

SINAN EMIRALI

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 March 2016
CASE MAY BE CITED AS:	DPP v Emirali
MEDIUM NEUTRAL CITATION:	[2016] VCC 285

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin
For the Accused	Mr A. Mazelli

HIS HONOUR: 

1Sinan Emirali, you have pleaded guilty to a charge of theft of electricity, between 10 July 2014 and 16 October 2014, and were found guilty by a jury on Charge 1 of cultivating a narcotic plant, namely cannabis, in a commercial quantity between 10 July 2014 and 16 October 2014. 

2The plea that you made to that offence of not guilty, did include an admission that you had cultivated the cannabis.  To that extent, the trial was conducted on the issue as to whether the prosecution was able to prove beyond reasonable doubt that you were aware of, at least the real possibility, of the quantity that you were cultivating, at least at some stage during the period over which the offence was said to have taken place, exceeded the minimum commercial quantity of 25 kilograms. 

3To that extent, the plea of guilty to cultivating cannabis does show some degree of remorse on your part. At least it is consistent with the plea made on your behalf that you are very remorseful for the offending conduct in which you engaged yourself. 

4The offence involved, at least by the time the police arrived at your premises to execute a search warrant, the end of the period of the cultivation, a total quantity of cannabis of more than four times the minimum commercial quantity.  The total weight of the plants, without their roots, was 111 kilograms, plus another 72, I think, grams, and it was, as I say, a substantial quantity, above the minimum commercial quantity. 

5However, as your counsel rightly pointed out during the plea hearing, this was a little unusual in that the number of plants involved was only 22, and the  minimum commercial quantity, if one does it by counting the number of plants, would be 100.  It was an unusual case in that sense, in that these relatively mature plants had obviously grown well and blossomed into plants which bore a substantial weight of cannabis. 

6The prosecution case was that the cultivation occurred over a period of a little over three months.  Your admissions to police would suggest a term shorter than that.  I accept that the cultivation occurred over a period of at least three months.  That is consistent with the evidence of the botanist as to the time it would take to cultivate plants to that level, and you clearly admitted that you were the person involved in the planting and the tending of the plants from go to whoa.  So I am satisfied beyond reasonable doubt that the period of the cultivation was in the order of three months. 

7The set-up in the house that you were renting was relatively sophisticated.  There was equipment which was valued by you at between five and $10,000, at least, and by the police excluding the extractor, or the filters and the ducts for the filters, something in the order of $20,000.  It seems to me that it is likely that the figure was somewhere between ten and $20,000 for the total outlay for the material that you accumulated to set-up the hydroponic system within the house.  You had to modify the house quite considerably and you set-up an electricity bypass, so that you could steal electricity, rather than pay for the large quantities of electricity required to cultivate this crop. 

8You asserted to the police that this was the first crop.  There was no evidence placed before me from which I could conclude otherwise, and I accept that this was your first crop.  I accept that you may not have realised at the outset the extent to which these plants would grow, how successful you would be as a grower, and that you may not have expected the plants to produce 111-odd kilograms of cannabis. 

9However, by the time you reached the last few weeks, and certainly the last week, prior to the police arriving, it must have been obvious to you, as the jury found that you had a crop that was considerably excess in weight of 25 kilograms.  Consistent with the jury verdict, I am quite satisfied beyond reasonable doubt that you did have that state of mind. 

10The system was quite sophisticated.  It was a system that you put together.  You carefully researched the equipment required and the growing methods.  You applied fertiliser.  The whole scheme was planned over a period of several weeks and constructed over a period of several weeks and prior to the cultivation taking place. You constructed the set-up yourself and you had plenty of time during that whole period and during the period of the cultivation, to reflect upon your conduct.  You knew perfectly well it was wrong.  You had no excuse for doing it. 

11Your motivation was for greed rather than need.  You intended to make money out of it.  Your claim that you intended only to make profit of $20,000 or thereabouts, in my opinion, is untenable and I am satisfied beyond reasonable doubt that you had expectations beyond a profit of a mere ten to $20,000. Precisely what that profit would have been, I do not speculate. Although I see as a benchmark the value that the police gave in evidence of, in the order of $100,000 for the crop. 

12It seems to me that no other conclusion is open, given that your outlay was five to $10,000, in circumstances where you claimed to the police that you were short of money and were struggling to find money to have your teeth done, dentistry work and struggling to find money to have your car serviced.  Well, you could have had your teeth done and your car serviced well and truly for the five to $10,000 that you outlaid on this, so that is not a basis upon which I can assess your intentions regarding this crop. 

13It may be and I accept that you were a user of cannabis at the time.  Clearly this was not purely for your own use and that it was your intention to sell for the purposes of profit. 

14

Turning to matters personal to you.  I was provided with a psychological report from Carla Lechner, consultant psychologist, dated 10 May 2015, in which she sets out a deal about your background. It points out the period during which you determined to embark on an apprenticeship and left your full-time employment at some years, and then discovered that you had contracted Hepatitis B. You fell into a period of depression, during which you

self-medicated with cannabis. That, no doubt, provided some relief, but nevertheless probably in the end, contributed to your clinical depression that she diagnosed, which developed into a major depression, according to her account.

15You were born and raised in Australia. You were schooled up to the age of about 14 or 15 here. Then taken back to Cyprus, which was the country of origin of your parents, and lived there for a few years, completing your schooling and then a year of National service, before returning to Australia.  Your family remain in Cyprus and you have made a visit in recent times for the marriage of your sister. 

16I am told - I said Hepatitis B, it was Hepatitis C, I am sorry. 

17I am told that you are thoroughly ashamed of your conduct and the disgrace that you feel is brought upon you and your family. I accept that since this offending conduct, which is now 12 - 18 months ago, or thereabouts, you have taken considerable steps to rehabilitate yourself.  You have sought treatment. You had sought treatment prior to this offending conduct, but you have continued with your treatment and have been keeping appointments with Mr Antony Curcio, a mental health nurse, for counselling, consistently during the period since the offending, and that your sessions have been on a weekly basis. You have been abstinent for a substantial period of time from your previous use of cannabis. 

18That is obviously very much to your credit and an important factor in determining that you have good prospects of rehabilitation, putting this behind you.  I think it is unlikely that you will offend again. Therefore I look to a sentence which has the capacity to promote your rehabilitation, as far as I reasonably can, consistent with the other sentencing considerations that I have to meet.

19I was provided with a number of written references on your behalf, which support the proposition that you have a good deal of substance in you.  You are a good person.  This is uncharacteristic conduct.  You have a good work record and many good qualities.  Your former partner supports you.  Your present partner supports you and I have no doubt that you have good prospects for the future, putting this behind you. 

20Were it just for those considerations, I would have been inclined to look for a non-custodial disposition, but I have to meet other sentencing considerations.  This is a serious offence.  It does call for a sentence that deters others from committing offences of this kind.  It is well recognised by the Courts of Appeal in Australia and particularly in this State, that general deterrence, that is, deterring others, is a very significant sentencing consideration in cases such as this.  In those circumstances, I am required, it seems to me, to impose a sentence that has some capacity to achieve general deterrence. 

21I take into account that there has been a delay of one and a half years, or thereabouts, since the offending conduct, and that you have demonstrated your capacity to rehabilitate yourself during that period.  I take into account your undoubted remorse, and the fact that you pleaded guilty to, not just the theft matter, but to the alternative offence, even though the jury found you guilty of Charge 1 on the indictment, that is, the alternative of cultivating cannabis simplicter.

22

I note in addition to those documents, to which I have already referred, that is, the report of Ms Lechner, but also too, I need to identify the letter for First Step, dated 13 November 2014, and also the report of Mr Curcio, dated

8 March 2016, all of which provide, not just evidence of your attempts to rehabilitate yourself, but other information about your background. 

23I am also provided with assay reports, which show that you have been abstinent and drug-free for some significant period of time, up to and including this year. 

24I have already indicated the sentence that I have in mind and I am now ready to impose that sentence upon you.  If you would please stand.  I need to find the pre-sentence detention.

25MR MARTIN:  Thirty-five days, Your Honour.

26HIS HONOUR:  Thirty-five days.  Agree with me? 

27MR MAZELLI:  Thirty-five days, correct, Your Honour. 

28HIS HONOUR:  All right. 

29Sinan Emirali, on Charge 1 on the indictment, I convict you and sentence you to imprisonment for a period of 19 months'.

30On Charge 2 of theft, I convict you and sentence you to imprisonment for a period of - I am sorry, 18 months' on Count 1.  On Charge 2 of theft, I convict you and sentence you to three months' imprisonment.

31I order that one month of the sentence on Charge 2 be served cumulatively upon the sentence of 18 months' on Charge 1, making a total effective sentence of 19 months' imprisonment. 

32I order, in addition, that you be the subject of a community corrections order for a period of two years, which will commence at the conclusion of your sentence, and require you to complete 150 hours of unpaid community work.  Require you to be under the supervision of the Department of Corrections for the period of two years, during which the order is in force, and to comply with directions, so far as treatment and rehabilitation programs are concerned for - to address drug abuse and mental health issues. 

33I will allow you to offset 50 of the house of unpaid community work, or 50 of the hours of treatment - successfully completed treatment and rehabilitation against the unpaid community work.  So that if you complete those 50 hours, the actual unpaid community work component would only be 100 hours. 

34It is important that you comply with the terms of that order.  You will appreciate that the order commences at the conclusion of your period of imprisonment and be in force for two years after that.  You must stay out of trouble during that two year period.  Commit any other offences punishable by imprisonment during the period of the order is in force, well you - up for - up to three months' imprisonment for the breach that the further offences involved also, you would be up for any further imprisonment that may be appropriate for the offence that puts you in breach, and you would be up for re-sentencing on this matter and you may get a longer sentence. 

35So it is important that you do not breach by committing any further offences during the period of the order.  It is also important that you keep all of your appointments and otherwise comply with the conditions, because that too could put you in breach and involve you in a sentence of up to three months' imprisonment for breach, as well as being re-sentenced for these matters.  So comply with the order please.

36I declare 35 days of presentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the time you will actually have to serve. 

37I make the disposal order in terms of the draft with which I have been provided. 

38Are there any other matters?

39MR MARTIN:  Just 6AAA on Charge 2, Your Honour. 

40HIS HONOUR:  Yes, 6AAA.  Do I need to do that, given that it is part of a - - -

41MR MARTIN:  There is a term of imprisonment, so there is a need for it.

42HIS HONOUR:  Well do I need to do it, though, if it is part of an overall sentence? 

43MR MARTIN:  That is a fair point, Your Honour. 

44HIS HONOUR:  Well, if I do not - if I do, then I would say, I would have given him four months' imprisonment if he pleaded not guilty to that offence. 

45All right, yes, thank you.  Wait a minute, stop.  Sorry.  You are going to have to stay because you are going to have to sign the order.  Sorry about that.  Yes, sorry, the paperwork just have to be completed and signed. 

46Mr Mazelli, when the order is ready, if you could accompany my associate to your client and make he understands what he is being asked to sign. 

47MR MAZELLI:  If Your Honour pleases, thank you.  Thank you, Your Honour. 

48HIS HONOUR:  Thank you Ms O'Reilly.  Thank you Mr Mazelli. 

49Those orders are now in place, thank you. 

50MR MAZELLI:  If Your Honour pleases.    

- - -