Director of Public Prosecutions v Hiseni, Adem and Mehmeti, Dritan
[2013] VCC 666
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02123
CR-11-02124
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADEM HISENI DRITAN MEHMETI |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2013 | |
DATE OF SENTENCE: | 2 May 2013 | |
CASE MAY BE CITED AS: | DPP v Hiseni, Adem & Mehmeti, Dritan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 666 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. Tran | CDPP |
| For the Accused | Mr C. Pearson (for Hiseni) Mr M. O'Connell SC with Mr M. Goldberg (for Mehmeti) | Valos Black & Associates Robert Stary Lawyers |
HIS HONOUR:
1 Adem Hiseni and Dritan Mehmeti, you have each pleaded guilty to one charge of possession of a marketable quantity of an unlawfully imported border-controlled drug, contrary to sub-s.307.6(1) of the Criminal Code (Cth).
2 The maximum penalty for that offence is 25 years' imprisonment, or a fine of 5000 penalty units, or both.
3 Before turning to the circumstances of your offending, it is convenient to refer to the procedural history leading to your pleas of guilty being entered. On 23 March 2011 you were both arrested at premises in Truganina. Your co-accused, Sajmir Beqiri, was arrested in his home in Templestowe. Following your arrest, all of you were charged with the offence now before this court, and the offence of manufacture a marketable quantity of a controlled drug, contrary to sub-s.305.4(1) of the Criminal Code (Cth). Beqiri pleaded guilty to those offences at a committal mention on 16 November 2011. Committal proceedings were conducted in your cases, during which the issue of whether your conduct could amount to the offence of manufacture marketable quantity of a controlled drug was examined. Despite the fact that it was clear that the conduct relied upon by the prosecution may not have amounted to "manufacture" for the purposes of the Criminal Code, the prosecution elected to proceed with that offence, and the offence of possession of the same substance.
4 On 10 February 2012, Beqiri pleaded guilty before me to the two charges in question, and despite statements by me as to the appropriateness of the charge of manufacture being laid in his case, the prosecution submitted that there should be a degree of cumulation as between that charge and the charge of possession. I did not uphold that submission.
5 On 4 March 2013 the Court of Appeal decided the appeal of Beqiri, and concluded that the charge of manufacture was not made out in the circumstances of this case. Beqiri was re-sentenced to five years and six months imprisonment, with a non-parole period of three years and four months by the Court of Appeal. The following day, you, Adem Hiseni, pleaded guilty to the charge of possession, and shortly thereafter you, Mehmeti, indicated your willingness to do so. In the circumstances I accept that in both cases your plea of guilty was entered at the first reasonable opportunity, and I have taken that fact into account in your favour in mitigation of sentence. And, further, I accept that you are both remorseful for your offending, and that your plea has facilitated the process before the court. Furthermore, by reason of the prosecution's insistence in proceeding with the charge that could not be made out on the evidence in this case, you have both experienced unnecessary delay in the resolution of these proceedings, and I accept that delay has caused considerable anxiety for both of you. It is regrettable that the approach taken by the prosecution has caused this delay, and I have taken that fact, that is, the delay, into account in your favour.
6 A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows.
7 In January 2011 a quantity of cocaine was imported into Australia from South America via Fiji. The cocaine was impregnated in clothing and towels located in a suit case. On 18 March 2011 you, Hiseni, arrived in Melbourne on a flight from Los Angeles. You had travelled from New York, where you then lived. The purpose of your arrival in Melbourne was to conduct and manage the extraction of the cocaine from the clothing and towels into a form that was suitable for distribution. Your attendance here had been arranged by Mehmeti and Beqiri. Prior to and following Hiseni's arrival, you, Mehmeti, together with Beqiri, made arrangements for his accommodation in Melbourne, and you also obtained chemicals and equipment to be used in the extraction process. I am satisfied that all three of you played an important role in the preparation for and conduct of the process, and each of you expected to profit from your involvement.
8 On 23 March 2011 police executed a search warrant at premises located in Truganina, and arrested you both there. As I have said, Beqiri was arrested that day at his home in Templestowe. Located at the premises in Truganina were six drums, each containing the clothing and towels submerged in 45 to 60 litres of liquid. Subsequent formal forensic testing of the liquid by the National Measurement Institute revealed that it contained 1692.92 grams pure cocaine. The value of the cocaine seized, if sold at 60 per cent purity, was approximately $562,000, and if sold at 35 per cent purity, $804,000. A marketable quantity of that drug is two grams, and a commercial quantity is two kilograms, and therefore your offending concerned a quantity of cocaine at the upper end of a marketable quantity of that substance.
9 It is clear from this summary that your offending may properly be described as serious. It is not possible to conclude on the available evidence the detail of your respective roles, but as I have said, you each played an important role in the process of extraction of the cocaine in preparation for its distribution. The sentence that I impose on you must be calculated to deter you and others from offending in this way. The distribution of illegal drugs of dependence for profit is an activity that causes incalculable damage to the society in which we live.
10 I now turn to your personal circumstances. Adem Hiseni, you were born on 10 August 1971 in Albania, and you are now aged 41. You have no prior convictions in Australia, or recorded criminal history in the USA, Germany, or Albania, were you have lived. You are a citizen of the USA, and you resided in New York with your wife and six children. Your children are aged between three and 17 years. Your family was dependent on you financially prior to a work-related injury that you suffered in 2004. Since that time your family has primarily relied upon welfare. You have no friends or family in Australia and for that reason your incarceration is a lonely and isolating experience, although you are able to speak to your family from time to time by telephone. I have received in evidence a report of Mr Michael Crewdsen, a consulting and forensic psychologist detailing your background and psychological profile. I accept that you suffer from an anxiety disorder by reason of your isolation, but your psychological profile is otherwise within normal parameters. I have also received in evidence a body of medical reports detailing that you suffer from diabetes and heart disease, following a heart attack in 2010. I accept that your anxiety and physical condition mean that imprisonment is causing you a degree of further hardship. However, if necessary, prison medical staff will be able to manage these conditions.
11 Your counsel submitted that your imprisonment has caused hardship to your family of an exceptional nature, and relied on a number of letters from your wife and children. Plainly, your family miss you, and they do not have the support of their father on a day to day basis. But I do not accept that this is an exceptional case.
12 The support of your family, your age, and your lack of prior convictions however have led me to conclude that your prospects of rehabilitation are good, and I have taken your family circumstances into account in the formulation of the sentence that I must impose.
13 Dritan Mehmeti, you were born in Albania on 4 February 1971, and you are now aged 42. You have no prior convictions. You left Albania at the age of 19, travelling to Greece and the United Kingdom. You married an Australian in the United Kingdom, and after residing in Canada you migrated to Australia in 1997. You resided in Sydney and Perth, and moved to Melbourne in 2008. You are now separated from your wife and have one child aged 15, who resides in Perth. You are an intelligent person who speaks seven languages and you have been employed consistently in the construction industry. I have received in evidence a report of Mr Patrick Newton, a consulting and forensic psychologist, and I accept that you have suffered from a mild form of clinical depression for some time, which will in turn cause hardship for you in prison, although this will also be able to be managed by prison medical staff if necessary. Having regard to all of the circumstances in your case, I also accept that your prospects for rehabilitation may properly be described as good.
14 As I have already observed, the Court of Appeal sentenced your co-offender Sajmir Beqiri to five years and six months imprisonment, with a non-parole period of three years and four months. In his case I concluded that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 were engaged, and the Court of Appeal heard evidence that the condition that Beqiri suffered from had deteriorated whilst he was in prison. Whilst there are factors in your respective cases that weigh in your favour in mitigation that were not present in the case of Beqiri, in particular the issue of delay, in my opinion, these factors are not such that I should impose a different sentence on either of you to that imposed by the Court of Appeal upon him. In the result, the sentence of the court is as follows–
15 Adem Hiseni, on the charge of possession of a marketable quantity of an unlawfully imported border-controlled drug, you are convicted and sentenced to be imprisoned for a period of five years and six months. I order that you serve three years and four months before becoming eligible for release upon parole. I direct that this sentence is to commence this day, that is 2 May 2013.
16 I declare that you have served 771 days by way of presentence detention, not including today. But for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years, and imposed a non-parole period of five years.
17 Dritan Mehmeti, in relation to the charge of possession of a marketable quantity of an unlawfully imported border-controlled drug, you are convicted and sentenced to be imprisoned for a period of five years and six months. I order that you serve three years and four months before becoming eligible for release upon parole. I declare that you have served 103 days by way of presentence detention, not including today. But for your plea of guilty, I would have imposed upon you a term of imprisonment of seven years and fixed a non-parole period of five years.
18 Your legal representatives will explain to each of you the terms of this sentence, as required by s.16F of the Crimes Act 1914 (Cth).
19 Are there any further orders required?
20 COUNSEL: No, Your Honour.
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