Director of Public Prosecutions v Gjyla
[2019] VCC 84
•7 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02202
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KLEVIS GJYLA |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2019 | |
DATE OF SENTENCE: | 7 February 2019 | |
CASE MAY BE CITED AS: | DPP v Gjyla | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 84 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of cultivating cannabis in a commercial quantity and one charge of possessing a false document – total effective sentence 16 months’ imprisonment with a non-parole period of 11 months – s6AAA total effective sentence 2 years and 3 months with a non-parole period of 16 months.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Sargent | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A Furstenberg | Furstenberg Lawyers |
HER HONOUR:
1 Klevis Gjyla, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity, which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to one charge of possessing a false document, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening, Exhibit “A”. In mid-July 2018, police had become aware that an electrical bypass had been set up in Units 1 and 2 at 1 Pinnacle Avenue, Ferntree Gully and that the accounts were in false names. Thereafter, they began an investigation into the cultivation of cannabis at those two units.
3 At approximately 6.15am on 3 August 2018, police attended the premises to execute search warrants. At that time, you were arrested as you came out of the front door of Unit 1 and approached a Ford utility, which was parked in the driveway. You told the police that Unit 1 was a “grow house” and were found in possession of two mobile phones, a key to the Ford utility and two house keys, which opened Units 1 and 2 respectively.
4 In addition, inside the utility police found a false international driver’s licence in the name of Mikulas Jankovic with a photo of you on it. The possession of this item constitutes Charge 2, possession of a false document.
5 Upon executing the search warrants inside the units police located cannabis plants in different stages of maturity within multiple rooms, which were dedicated to the cultivation of cannabis and fitted with complex hydroponic growing equipment. There were a total of 43 plants and buds in Unit 1, which weighed 79.11 kilograms. There were a total of 11 plants in Unit 2, which weighed 33.1 kilograms. In addition, in Unit 2, there were offcuts of cannabis contained in three garbage bags and the weight of the offcuts was 13.8 kilograms. The total combined weight of cannabis was 112.21 kilograms, nearly 4 ½ times the commercial quantity of 25 kilograms.
6 Following your arrest, you were interviewed by police and essentially provided “no comment” answers. You were remanded in custody and pleaded guilty to the charges at a committal mention on 26 October 2018. Hence, the matter proceeded by way of hand-up brief.
7 You are present aged 24 years, having been born on 7 August 1994. No prior criminal history has been alleged against you.
8 In a plea on your behalf by Mr Furstenberg, the Court was told that you were born in Albania but, when you were either six or seven years old, your family travelled to America with you, your twin sister and an older brother. Your parents separated whilst the family was in America. Your mother remained there and lives in Philadelphia. Your father returned to Albania with your older brother. You and your twin sister remained in the United States with your mother and you attended school there. By age 15 you had become involved in the school gridiron team and held aspirations to play professionally. However, at age 17, you suffered an injury which put your football career at an end. You were very distressed by this and your counsel stated that your enthusiasm for school waned and you started to get into trouble and miss classes and engage in a “party” lifestyle. You managed to complete high school, but your grades were only average. At the age of 18, you returned to Albania where you worked for your father for two years. Your father apparently has three separate business in the city of Lushnjë, namely, a restaurant, a butcher shop and a gun shop. You decided to save money and travel overseas.
9 Mr Furstenberg stated that in January 2016, you arrived in Australia on a student visa, with savings of some $30,000 (US). You spent three months in Adelaide and then moved to Melbourne where you undertook a 16 week course entitled “Certificate III Business Management” at Australian Industrial Systems Institute. After completing the course, you continued to live in Melbourne, but your visa expired in January 2017 and you had been living in Australia illegally from then until the time you were arrested. Mr Furstenberg said that you did some sporadic labouring work for cash, but soon found that your savings were exhausted and you were in financial difficulty. He stated that at a local gym, the name of which you were unable to recall, you met a person, whom you did not know. He offered you free accommodation in order to perform a crop sitting role and you took up that offer. Mr Furstenberg urged the Court to find that your bad decision was made in a context of immaturity and being vulnerable in Australia without a visa and without financial resources.
10 Mr Gjyla, you should be in no doubt as to the seriousness of your offending. Drugs are a scourge on our community and, although the indictment describes the offence of cultivation on one day only, which the prosecution concedes that is all that it can prove, were it not for people like you prepared to assist cultivators, then the illicit drug trade, which does a great deal of harm in this country, would not prosper. You have a father who is financially well off and a mother who works as a teacher in the United States, yet you chose not to seek assistance from them and remained in Australia illegally. The fact that you possessed a false driver’s licence with your photo on it is an indication of dishonesty in circumstances where you must have been well aware that you had had no authorisation to stay in Australia for the last year and a half leading up to your arrest. Your reason for remaining here was not made at all clear during the plea hearing. Apart from having completed the 16 week business course soon after arrival, you do not appear to have achieved anything of merit during the remainder of your two and a half years in Australia leading up to August 2018.
11 In sentencing you, the Court must denounce your conduct and apply the principle of general deterrence, so that others who are minded to assist in the illegal drug trade will know that they will meet with appropriate punishment. The prosecution concedes that there is no evidence of you having a role beyond that of crop sitter and you do fall to be sentenced for a single day. However, the principles of general deterrence and just punishment should still apply to lower level offenders without whom commercial cultivators could not flourish. You took a deliberate risk by becoming involved in illegal activity in circumstances where you had no right to be in the country at all, although I accept that there is no evidence that you came to Australia with a view to being involved in this offending. Taking into account the maximum penalty of 25 years’ imprisonment for cultivation of a commercial quantity and the weight of the plants in the two properties (nearly 4 ½ times the commercial quantity), the fact that you had keys to both units and having regard to current sentencing practices, I find that the gravity of the offending is such that the only appropriate sentence is a term of imprisonment.
12 Mr Furstenberg urged that you should be a given a term of imprisonment in combination with a Community Correction Order. In my view, this would not adequately reflect the gravity of the offending and reflect sufficient emphasis upon general deterrence and just punishment. There were no compelling reasons for you to have committed this crime. You should have left Australia a long time beforehand and either returned to work with your father in Albania or found work in America.
13 Mr Furstenberg and the prosecutor, Ms Sargent, agreed that, upon your release from custody, deportation to the United States is a certainty. Mr Furstenberg did not seek to argue that this would be a hardship for you in that he acknowledged that you had no entitlement to be here, had not established yourself in Australia and there was no hardship in your being returned to America, which is your place of citizenship and where your mother and twin sister live. Rather, he urged that, because there is a clause in the Parole Manual for the Adult Parole Board of Victoria which enables the Board to exercise the discretion to release a prisoner who is subject to deportation later in time than his first available parole release date, this is a factor which the Court should take into account in weighing upon you. In my view, this represents an executive discretion which may or may not be exercised and I do not consider it appropriate to take into account.
14 Mr Furstenberg also urged the Court to take into account that, after you are released from prison, you may well have to endure a period in Immigration detention before being deported. That may well be so, but it is very difficult for to take into account such an indeterminate factor. There has been no material put before me in relation to this and, hence, it may well be as likely that you will be taken straight from prison to be deported or there may be some further lapse in time before that occurs. I simply cannot say. In any event, your illegal status here would probably have resulted in some period in Immigration detention prior to deportation, regardless of your having committed the crimes for which I am to sentence you. However, I do take into account that you have uncertainty about whether you will be further detained after being released from prison and that means that you are most likely suffering some anxiety about your fate whilst undergoing your sentence of imprisonment.
15 In sentencing you I do take into account that you are a relatively young person who has shown very bad judgment in this offending. Given your lack of prior convictions, your prospects of rehabilitation are probably good. I do take into account that you have spent time in custody to date and will continue to spend time in custody without visits from your family, all of whom live out of Australia, and that you are limited in the number of phone calls you can make to them to keep in touch. This does make for an isolated and more onerous service of a sentence.
16 Although you did not cooperate with police when interviewed, you entered a plea of guilty at the very earliest opportunity. That factor, in itself, can be evidence of remorse. It has certainly facilitated the administration of justice and saved the expense and time of both a committal and trial. You are entitled to a significant discount on your sentence because of such early plea.
17 On one charge of cultivating cannabis in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 15 months.
18 On one charge of possessing a false document, you are convicted and sentenced to be imprisoned for a period of 4 months.
19 The base sentence is that imposed on Charge 1. I direct that 1 month of the sentence imposed on Charge 2 be served cumulatively upon the base sentence.
20 The total effective sentence is thus 16 months’ imprisonment. I direct that you serve a period of 10 months before becoming eligible for parole.
21 I declare a period of pre‑sentence detention of 188 days to be time reckoned as already served under the sentence imposed this day.
22 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 2 years and 3 months’ imprisonment with a non-parole period of 16 months.
23 On Charge 1, pursuant to s464ZFAAA(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order warranted by reason of the seriousness of the circumstances of Charge 1. You need to be aware, Mr Gjyla, that if you do not consent to having a swab of saliva taken from inside your cheek, then police may use reasonable force to enable that forensic procedure to be conducted.
24 On Charge 1, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the five items mentioned in the schedule which were seized by police from the two units. I further direct that they be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any proceedings where it may be tested and/or and then destroyed.
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