Director of Public Prosecutions v Gunal

[2016] VCC 396

IN THE COUNTY COURT OF VICTORIA

             Revised

Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02268

DIRECTOR OF PUBLIC PROSECUTIONS

V

YIGITCAN GUNAL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2016
DATE OF SENTENCE:	7 April 2016
CASE MAY BE CITED AS:	DPP v Gunal
MEDIUM NEUTRAL CITATION:	[2016] VCC 396

REASONS FOR SENTENCE
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Subject: Criminal law - sentence    

Catchwords: Pleas of guilty to two charges of cultivation of cannabis, one charge of theft of electricity and a summary charge of dealing with suspected proceeds of crime – full admissions to police including admissions as to other offending of which police had no knowledge – student visa expired – illegal immigrant – deportation certain – no priors convictions– good family in Turkey – time served adequate.      

Sentence: 271 days TES         

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	OPP
For the Accused	Ms N. Kaddeche	Doogue & O’Brien

HER HONOUR: 

1Yigitcan Gunal, you have pleaded guilty to two charges of cultivating cannabis and one charge of theft.  You have also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime. 

2The maximum penalty for cultivation of a narcotic plant is 15 years' imprisonment and for theft the maximum is 10 years.  For dealing with property suspected of being the proceeds of crime, the maximum penalty is two years' imprisonment.

3On 11 July 2015, police executed a search warrant at a house in Heathmont where you were living.  You refused to open the door to the police and they had to force their entry.  Inside they found a hydroponic cannabis cultivation set-up in three bedrooms and a kitchen.  There were 111 cannabis plants in various stages of growth weighing 47.8981 - that is nearly 48 kilograms.  That is Charge 1.  It applies to a period between 21 March and 11 July.

4An electrical bypass had been installed which facilitated a bypass of the electrical meter at the house and the unlawful use of electricity to run the hydroponic set-up.  The value of the stolen electricity was $8,807.20.  That is Charge 2.

5A large number of items connected with the cultivation were found as well as some of your personal belongings and $530 in your jacket and wallet.  The money gives rise to the summary charge.

6You were arrested and interviewed with the assistance of an interpreter as your native language is Turkish and you did not speak English well.  Before the interview commenced, you told the police that you had been involved with another cannabis crop as well at a house in Doncaster East.  You did not know the address but showed police photos of the property on your mobile phone, taken when you had gone there on one occasion only to assist in installing the hydroponic set-up.  That is Charge 3.

7As a result of that information, police executed a search warrant at the Doncaster East house and found a hydroponic cannabis set-up there with 23 plants weighing 75 grams.  An electrical bypass had been installed and police also found equipment, instructional material for the cultivation of cannabis and a large amount of cash.  In the car at the property, a further large amount of cash was found as well as jewellery and watches.  The residents at that property, husband and wife Enis Ibricic and Fatma Traljesic were arrested and have been charged.

8Also charged was Akin Saricayir.  You had met Mr Saricayir some two years earlier when you were working at a suburban bakery or café.  You had come to Australia in 2011 as a 20-year-old and later that year you had obtained a student visa to allow you to learn English which had been your reason for coming to Australia.  You began working at the café but your wages were not fully paid and after some time when your visa expired, you could not afford to apply for an extension. 

9When in April 2012 your status changed to that of an illegal immigrant, your employment was terminated and you were desperate for money.  Mr Saricayir introduced you to Ibricic and Traljesic who were setting up the cannabis crops at the two houses.  By this time you were living in Euroa in a house provided by Mr Saricayir but you spent about four nights only at the Heathmont house assisting by watering the plants and changing light globes.  You only went to the Doncaster East house once where you helped change filters and set up equipment.  The co-accused provided a car for you to drive.

10You were very keen to stay here and with no money and no visa, you accepted the help offered by the co-accused to stay in the Heathmont house rent free and for them to help you to find a wife.  You believed that if you married, you would be able to stay.

11Your personal circumstances are that you were aged 24 when you committed the offending and you are now 25.  You were born in and grew up in Turkey, completing your secondary education there.  You come from a law-abiding family with a highly educated older brother who lives in England.  You have no prior convictions here or in Turkey.  You wanted to learn English so you could travel and play music, and your intention was to stay here for a year and then return to Turkey.  However, you enjoyed the life here so much that you wanted to stay.

12You had been diagnosed in Turkey as suffering from a mental illness on what appears to be the continuum of schizophrenic-type disorders, and my reading of the diagnosis for which you were medicated is bipolar disorder.  This information is contained in a report from a psychiatric hospital dated 15 September 2009 which has been translated into English. 

13You were remanded in custody after your arrest and have remained in detention without the authorities knowing of your condition.  Over a period of about four months last year, telephone conversations between you and Saricayir were recorded and transcribed, revealing that you were hoping to be able to marry whilst still in custody which you believed would enable you to obtain the necessary visa to stay in Australia.

14You indicated that you would be able to pay the woman who agreed to marry you a large amount of money which you would obtain by some means, possibly illegal, saying - and I quote - "I would be able to do a thing when I get out".

15You have been told by the Department of Immigration that you are to be deported and so there is no chance that you will be able to remain in Australia.  You have been in pre-sentence detention for 271 days, and once you are released it seems certain that you will be detained possibly until the co-accused have been dealt with.

16There seems to me to be an element of naivety in your perception of your chances to stay in Australia and of the means of achieving that goal.  It seems also that in your desperation you were easy prey for the co-accused and they were prepared to exploit your need for money and marriage to ensure your ongoing stay here.

17These are of course serious offences, but your offending was in a minor way as a crop-sitter assisting the co-accused at a low level of involvement and gaining little benefit from it.  It seems you were paid small amounts of money to cover expenses from time to time and you had the use of the car.

18Your plea of guilty was entered at the time of the committal hearing and you had made full admissions to the police when you were arrested.  Indeed you told them how many times you had been to the Heathmont house and told them about the existence of the crop at the other house.  There was no other evidence available to the police hence your admissions are of significant value to the prosecution.  It amounts to cooperation at an unusually high level and deserves recognition in the form of a significant discount on your sentence.

19You have no family or friends in Australia, hence you have no visitors and you still do not speak English well.  You applied to learn English in prison but you were not accepted and instead have been employed making tubing.  Nonetheless I am told that your English skills have improved since you were imprisoned.

20General deterrence is an important consideration in view of the seriousness of the charges but specific deterrence calls for different considerations in this case because of the certainty that you will be deported either as soon as any sentence is completed or once the co-accused have been dealt with.  It is not known at this stage whether you will be detained on a bridging visa of some sort.  You have been in detention for 271 days, close to nine months which in all the circumstances is sufficient time to satisfy the sentencing requirements in this case. 

21Will you stand now please, Mr Gunal.

22I sentence you to 271 days' imprisonment for Charge 1 and six months for each of Charges 2 and 3. 

23For the summary charge, you are sentenced to four months.  All sentences are to be served concurrently with each other because of their proximity in time over a short period and their close relationship one to another.  The 271 days will be reckoned as already served and I will cause that to be noted on the court record. 

24If you had pleaded not guilty to these charges, I would have sentenced you to 18 months' imprisonment.  The prosecution seeks an order for forfeiture of the $530 found in the Heathmont house and I have not heard from Ms Kaddeche whether that is consented to or not.

25MS KADDECHE:  It is, Your Honour.

26HER HONOUR:  Consented.  I make that order.  Are there any other matters?

27MS KADDECHE:  No, Your Honour.

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