Director of Public Prosecutions v Gashi

[2022] VCC 840

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-01475

DIRECTOR OF PUBLIC PROSECUTIONS

v

RASIM GASHI

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2022
DATE OF SENTENCE:	3 June 2022
CASE MAY BE CITED AS:	DPP v Gashi
MEDIUM NEUTRAL CITATION:	[2022] VCC 840

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence – Plea of guilty – After Sentence Indication – Cultivation of a non-commercial quantity of cannabis – Immature crop – Weight exceeded 70 kg (CQ 25 kg) just under 100 plants (CQ 100 plants)  –  co-offenders  – Delay  – COVID-19 pandemic restrictions  –  personal hardship

Legislation Cited:      Sentencing Act 1991 (Vic) s 83A

Sentence:                  Community correction order for a period of three years – Unpaid community work condition – 300 hours

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Balmer & Associates

HER HONOUR:

Circumstances of the offending

1Rasim Gashi, on 23 August 2017, as you drove down MacKenzie Close in Taylors Lake, police were executing a search warrant at a property where a large cannabis crop had been found growing.  MacKenzie Close is a quiet suburban street with some very alert occupants.

2Neighbours immediately recognised the car that you were driving as connected with the house where the crop was growing and the police were executing the warrant.  You were driving towards the cul-de-sac end of MacKenzie Close where the house was located.  As you approached the house you tried to do a U‑turn but you were intercepted.  The neighbours then recognised you, and your passenger, as people who had been seen coming to the house and engaged in activity which had alerted their suspicions. You in particular had been noted by neighbours to be a frequent visitor to the house.

3You and your passenger were interviewed by police after the finding of that hydroponic crop.  You made no admissions.  Police later interviewed the owner of the house.  Although he initially denied any involvement with the crop he ultimately acknowledged to police that he had been involved in the cultivation of that crop and three earlier crops in the house over the previous 12 months.  He made a statement detailing his involvement, yours and that of your passenger. All three of you were charged with offences relating to cultivation and theft of electricity in relation to the crop found at the house at the time of the execution of the warrant.   You were charged with cultivation of a commercial quantity of cannabis.

4The crop found in the house at the time of the execution of the warrant was immature, but it already well exceeded a commercial quantity for cannabis. It weighed in wet weight, excluding roots, over 70 kilograms, a commercial quantity being 25 kilograms or not less than 25 kilograms, and there were just under 100 plants. 100 plants being again the threshold for a commercial quantity.

5After committal to this court the owner of the house, Joe Conforto, pleaded guilty to a rolled up charge of cultivation and gave an undertaking to give evidence against you and the other occupant of the car, Pashk Zalli.

6Mr Conforto told police and made a statement that he was prepared to give evidence to this effect,: that you and he had known each other for a long time. You had initially worked at his father’s bakery and your acquaintanceship continued as he succeeded to his parents’ bakery business and you too had engaged in work as a baker.

7

In 2015 you re-established a connection. Both of you were experiencing money troubles. You suggested to Mr Conforto that cannabis growing was a way of alleviating the financial difficulties that each of you were facing. Ultimately

Mr Conforto agreed to participate in cannabis cultivation with you and provided his house in MacKenzie Close.  He and his family had just recently moved out of it and it was then unoccupied.  He said that you agreed to pay him rent for the house whilst the crops were being cultivated and that you would share in the proceeds of the crops. 

8A test crop was grown in 2016 and then a further crop was grown. There was a burglary at the house that had led to a diminution in the enthusiasm for participation in cultivation, but that enthusiasm was rekindled in late 2016 or early 2017.  It was you, Mr Conforto said, who brought the third offender, Mr Zalli, in and held him out as being a person with expertise in cultivating crops.

9

According to Mr Conforto two crops were grown in 2017, the second of which was under cultivation at the time of the execution of the warrant in August.  He said that all three of you had worked on cultivating or tending the last two crops and

Mr Zalli had been the one who had moved to a more sophisticated form of hydroponic setup and increased the scale of the activity. 

10Mr Conforto said that by the time of the execution of the warrant you had paid him two amounts, one of $20,000 and one of $15,000, as his proceeds for the profits derived from the cultivation enterprise and he was sentenced on that basis.

11Much of that is background, but was relied on as the surrounding circumstances, when contextualising his complicity.

12Even after Mr Conforto had given his account implicating himself, you and Mr Zalli, and had indicated his preparedness to give evidence at your trial, you indicated an intention to plead not guilty to all charges..

13In your initial defence response filed with the court you denied any involvement in the cultivation of cannabis or any involvement in the setup of the electrical bypass system that was discovered at the house and you maintained that position until shortly before the trial.

14Mr Conforto was sentenced well before COVID hit the country and the world.  Your trial was long delayed as a result of the COVID outbreak and the closedown of the courts and it was scheduled to start only a few weeks ago.  Shortly before the trial you asked for a sentence indication and the Crown consented to that procedure.  By then it must have been clear that it was highly likely that Mr Conforto was going to honour his undertaking. 

15You had unsuccessfully challenged the search warrant that had been relied upon by the police to raid the house and discover the crop and had thought initially to challenge the evidence given by the neighbours of your identification when arrested at the scene.

16However, most significantly, by the time the trial was due to start your personal circumstances had changed considerably.  In addition to the undeniably onerous effect of the delay caused by COVID, your wife of 43 years had been diagnosed with breast cancer.  I am told that she has undergone a mastectomy.  She has also endured courses of chemotherapy and radiotherapy.  She is under treatment through Peter MacCallum.  Her treatment is ongoing and her prognosis is uncertain. 

17You have four children but they have all moved out and you and your wife live alone together.  She relies upon you for support and care.  Your four children have done very well in life and are all working full-time and are unable to provide their mother with the care and assistance that she needs and which you have been providing unstintingly since her diagnosis.  

18The sentence indication was sought on the basis of a guilty plea being entered to one charge of cultivation in a non-commercial quantity of cannabis relating to the crop that was found under cultivation at the time of the execution of the warrant.

19The maximum sentence for cultivation of a non-commercial quantity of a narcotic plant is 15 years’ imprisonment and that, of course, is one measure of the seriousness with which Parliament and the community regards this offence. An examination of the sentencing statistics shows that a wide range of sentences is available for cultivation of a non-commercial quantity and that includes a community correction order, alone or in combination with imprisonment.

20At the sentencing indication, having heard the matters relied upon, the sentencing facts upon which the matter would proceed were you to enter a plea of guilty, and is the matters relied upon on your behalf, I indicated that I had been persuaded, although it was not my initial view, that a community correction order was within range and it was following that indication that you entered your plea of guilty to this charge.

21What I have recited so far about the surrounding circumstances is properly to be regarded as background and surrounding circumstances. For the purposes of sentencing you you have pleaded guilty to cultivation of one crop, that crop being the immature one that was found under cultivation at the time of the execution of the warrant. It is for that and only that crop that I must sentence you. 

22I sentence you on the basis that you were one of three people actively involved in the tending of that crop and that it was a cultivation that was embarked upon for personal gain, so for profit, It was a serious enterprise where clearly a significant amount of money had been invested in the sophisticated hydroponic setup, steps had been taken to conceal the venture that was going on at the house. The large number of plants at the varying stages of maturity showed that this was a serious enterprise, not just three plants in the back garden.

23These all indicate, therefore, that deterrence, both general and specific, denunciation and just punishment are all significant factors that weigh in the sentencing mix.  Cannabis is an illicit drug, it is a prohibited substance.  Those who participate in its cultivation in large quantities for profit must understand that if they had taken the gamble of making easy money that way that they will face significant punishment when they are caught.  People must understand that they cannot turn houses over or lend themselves to a venture of participating in the cultivation for profit of a narcotic substance.

24What then are the matters justifying the view that I formed at the end of the sentence indication hearing that a community correction order was open for you in these circumstances, you being a principal in the venture in relation to that one crop, but against the background that has been described?  There were three significant factors.  The first is that of your wife's illness and hardship, and I have already mentioned that.  The second is the significance and the weight that must be given to a guilty plea, even a late entered one, but particularly in these COVID times.  And the third is your previous good character. 

25I have already referred to your wife's illness and no words can properly convey what must be the distress that you and she face on a diagnosis such as that and the treatment stage and prognosis that she has. You have been married for 43 years and by all accounts it has been a loving and devoted marriage. There is not only a burden to you if you were to be imprisoned, but there is a significant hardship to your wife if you were to be imprisoned, unable to care for her and unable to be with her to support and comfort her during this extraordinarily difficult time. That fact has to carry considerable weight. Justice and just punishment must always be tempered with mercy.

26Your plea of guilty, although not early, entitles you to a considerable reduction in the sentence that is otherwise appropriate.  The weight to be given to your guilty plea has increased significantly beyond what would have, pre-pandemic, been thought to be the appropriate sentence reduction for a court door plea.

27The pandemic and its effect, not only on the hardship of imprisonment but also on the need to encourage and reward people who plead guilty so as to assist in the reduction of the backlog of trials awaiting a timeslot in this court, is significant. The toll on everybody caught up in the criminal justice system whose trials cannot get on, whether they are accused, whether they are victims, whether they are third party witness, cannot be underestimated.  And it is very clear that the courts must actively encourage guilty pleas and reward those who are taking their part in advancing the interests of justice by pleading guilty. I not only say that, but I adopt what I said to Mr Anderson during the sentencing indication hearing about that.

28You are a person who has to be regarded generally as a man of good character who has lived a hardworking life since arriving in this country at the age of 22, and now as man in his 60s you are entitled to the benefit of having no criminal conviction other than one for tax related matters that relate to a history of financial hardship that is said to be your motivation for engaging in the cultivation in the first place.

29You are now 67 and you were 62 at the time of the offending.  You were born in Kosovo and you were 22 when you arrived in Australia as a refugee.  Your time in war-torn Kosovo was difficult, in Kosovo generally was difficult.  Your family was politically opposed to the government at the time I was told.  Your father was a political prisoner.  At 14 you too were placed in prison by the Serbian Police.  At 17 you were conscripted into the Serbian Army and it was after that that you fled and came to Australia hoping to make a life for yourself. 

30When you arrived in Australia you worked initially as a toolmaker and then a sheet metal worker.  You wanted to undertake tertiary education, but circumstances did not permit that.  You met your wife when the two of you were quite young, married early and have had four children, all of whom have gone on to complete tertiary education, and all of them are holding down good jobs and, like you, are contributing members of the community. 

31Some time after your arrival in Australia you and your wife went back to Germany so you could care for extended family members. You stayed in Germany for almost 10 years, working there, supporting family members, some of whom were fleeing Kosovo because of their political engagement or just because of the circumstances there generally, before returning to Australia. 

32You continued to work on your return to Australia and for a time were clearly living a comfortable and prosperous life - the classic migrant success story.  You owned your home.  You were working as a baker.  You ran a restaurant.  You were engaging in property development, but then you hit financial difficulties in the management of your businesses and that led to you being declared bankrupt. 

33It was after that and the loss of your assets that you reconnected with Mr Conforto, worked as a baker or him for some time, then found yourself engaged in this cannabis enterprise. Since then a combination of COVID and then your wife's illness have meant you have not reengaged in paid work.  Nonetheless, you are clearly a man who has made a significant contribution and your history of hard work, of good parenting, of being a good husband and of being a good contributor to the community, having no conviction other than that tax conviction relating to your difficult financial circumstances, all count in your favour.

34It was for those three main reasons that I decided that a community correction order was within range.

35There were some parity considerations in relation to the sentence imposed upon Mr Conforto, but they were relatively limited because His Honour Judge Allen, who sentenced Mr Conforto, had placed considerable weight on his cooperation with the authorities and his undertaking to give evidence, but the intervening effect of COVID and these other matters have changed your circumstances so one cannot do a strict comparison and a parity adjustment between the two of you. The circumstances are just too different now.

36You have been assessed and found to be suitable for a community correction order.  Not surprisingly, given what I have said, you have been assessed as a low risk offender.  That is someone at low risk of reoffending.  Therefore, Corrections recommends that no conditions other than unpaid community work, which I have asked you to be assessed for suitability for, were appropriate and the reasons for that I accept.

37Despite the things that I have mentioned counting in your favour this is serious offending.  It was a clear calculated decision on your part and there must be a significant punitive element to the community correction order , not only to punish you but also to stand as a marker of the denunciation of the community for participation in such a venture, and to stand as a deterrent to others as well as you if you are tempted again by financial hardship, not to find this as an easy way or appropriate way of making money.

38I hope when you look at your children you are ashamed because it does not sound to me as if they are the values you brought them up to honour and value, and it must be terrible for you to have to face them saying this is what you did and now you have to be punished and that you have a serious criminal record for it. But I also take it as a punishment because it seems to stand in contrast to the way you have conducted yourself and brought up your family.

39So I am going to impose on you a community correction order with a sole additional condition, that is a condition of unpaid community work, with a substantial amount of unpaid community work. It is for a substantial period. Ultimately, whilst I was not trying to do the match, I have ended up fixing on the same period for the community correction order three years, as was imposed on Mr Conforto, and the same number of hours of unpaid community work. Not because I think your cases match but because of my view of the seriousness of your offending and the appropriateness of dealing with it, but making sure it is not disproportionate to Mr Conforto’s.

40Now, before I impose a community correction order on you, Mr Gashi, you must consent to it.  So I am going to read those conditions to you, ask you whether you understand and whether you consent, and if you do then I will make that community correction order.  Do you understand that?

41OFFENDER:  Yes.

42HER HONOUR:  Yes.  You have already had those conditions explained to you, haven't you?

43OFFENDER:  Yes.

44

HER HONOUR:  Well, what I propose is an order that will last for three years, commencing on 3 June, that is today, and ending on

2 June 2025.  And the mandatory terms of the community correction order are these: 

·        That you must not commit another offence for which you could be imprisoned during the time the order is in force.

·        You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you must not be impaired by alcohol or any substances when you attend Corrections for any meetings or for performance of any unpaid community work or any of your community correction order obligations.

·        You must submit to drug or alcohol testing if required to do so.

·        You must report to and receive visits from the Secretary or delegate.

·        You must report to the Melton Community Correctional Services Centre at 2A Barries Road in Melton within two clear working days after the commencement of this order.  So that means by Tuesday of next week.

·        You must let a community correction officer know within two clear working days if you change your address or your job. 

·        You must not leave Victoria without first getting permission to do so from the Secretary or delegate.

·        And you must obey all lawful instructions from and directions of the Secretary or delegate.

45So they are the core conditions that apply to all community correction orders. In addition, I am going to direct, if you consent, that you perform 300 hours of unpaid community work over that period of three years as directed by the regional manager. I must warn you that if you fail to comply with this unpaid community work order condition then the Secretary to the Department of Justice, or their delegate, can give you a direction to perform additional hours of unpaid community work in accordance with s83A of the Sentencing Act.  Do you understand those conditions?

46OFFENDER:  Yes.

47HER HONOUR:  Do you have any questions about them, Mr Gashi?

48OFFENDER:  No, thank you.

49HER HONOUR:  All right.  And do you consent?

50OFFENDER:   Yes.

51HER HONOUR:  In that case, on the one charge of cultivation of a narcotic plant, to which you have pleaded guilty, you are convicted and sentenced to be placed on a community correction order for three years commencing today and ending on 3 June 2025, with the core conditions and the additional condition of performance of 300 hours of unpaid community work over the period of three years.  Your consent to being placed on that order and understanding of the conditions is now a part of the court record.  We have heard and seen you say that, but you may well be asked by Corrections to sign a copy of this order just confirming that you understand the conditions and you consent to them when you attend upon Corrections.  Do you understand that also?

52OFFENDER:  Yes.

53HER HONOUR:  Even without signing it is binding on you from this moment.

54OFFENDER:  Thank you.

55HER HONOUR:  So I am signing this now in your presence.  I have just signed it.  That is my signature there and a copy of that will be provided to your lawyers to be provided to you.

56OFFENDER:  Thank you.

57HER HONOUR:  Mr Gashi, I certainly hope that you do not come back before me for a breach of this order and you do not come back before the court for any other offending.

58OFFENDER:  I don't think so.  Never.

59HER HONOUR:  I hope this has been a salutary lesson for you and that you go back to modelling, being a good citizen and a good parent to your children.

60OFFENDER:  I will.  Thank you so much, Your Honour.

61HER HONOUR:  And that you devote your time to looking after your wife through what must be an extraordinary difficult time for both of you.

62OFFENDER:  Thank you.  I appreciate it so much.

63HER HONOUR:  Now, her illness and her care may mean that it may be at times difficult for you to comply with your unpaid community work conditions.  Corrections are very understanding and will accommodate you, accommodate the times that you need to care for your wife, to take her for treatment or to care for her at home, but you must let them know in advance.

64OFFENDER:  Yes, I'll do that.

65HER HONOUR:  And make sure you do and if you or they need to come back to this court for a variation of the order, particularly a variation in relation to the unpaid community work because of your wife's needs, make sure you discuss it with them in advance, and be aware that you can make application to come back here for a variation of the order if your circumstances change or the demands on your time because of your wife's illness become greater.

66OFFENDER:  Thank you.

67HER HONOUR:  Are there any further orders, Ms Caruso?

68MS CARUSO:  No, Your Honour. 

69HER HONOUR:  Yes.  All right.  Thank you, Ms Caruso.  Thank you, Mr Anderson.  We will now adjourn.

- - -