Director of Public Prosecutions v Kassar
[2014] VCC 12
•24 January 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BILLEL KASSAR |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2014 | |
DATE OF SENTENCE: | 24 January 2014 | |
CASE MAY BE CITED AS: | DPP v Kassar | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 12 | |
REASONS FOR SENTENCE
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Subject: Cultivation of Cannabis
Catchwords: Cultivation of a commercial quantity of cannabis – theft of electricity – deal with property suspected to be the proceeds of crime.
Legislation Cited:
Sentence: Twenty eight (28) months’ imprisonment with a non-parole period of fourteen (14) months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr C Kilias | Vassis & Co |
HIS HONOUR:
1 Billel Kassar, you have pleaded guilty to
(a) one charge of cultivation of a commercial quantity of cannabis L, the maximum penalty for which is 25 years’ imprisonment;
(b) one charge of theft of electricity with an estimated value of $8,517, the maximum penalty for which is 10 years’ imprisonment; and
(c) one uplifted summary charge, dealing with property suspected as being the proceeds of crime, being cash in the sum of $29,940, the maximum penalty for which is two years’ imprisonment.
Circumstances of offending
2 The facts are as described in Exhibit A, the Summary of Prosecution Opening. I adopt those facts for the purpose of this Sentence, save in respect of some comments which I shall shortly make.
3 In October 2012, you were observed as part of a surveillance operation at residential premises in Werribee. In a subsequent search of those premises, 39 cannabis plants were located with a combined weight of 88 kilograms. A further nine kilograms of the plant was located in two garbage bins within the premises. There was a sophisticated hydroponic growing system installed and a range of other equipment found, being equipment usually associated with drug cultivation.
4 An electrical bypass system was in place and it was estimated that over a period of approximately three months during which the crop was grown, electricity to a total value of $8,500 was stolen.
5 Secreted in the kitchen was $29,500 in cash.
6 In subsequent records of interview you told the police:
· that you were responsible for establishing the hydroponic growing system, including purchasing the various items of equipment;
· you had been growing the cannabis crop for about three months;
· no one else was involved in the offending;
· you established the electrical bypass system;
· initially you said the cannabis was for your own use, but accepted that that was not the case for all of the crop;
· you did not know that $29,500 in cash had been secreted in the premises, and did not know who owned it.
7 After your arrest, you spent 12 days in custody and, at a committal case conference on 30 January 2013, indicated your intention to plead guilty to all charges. The prosecution accepts your plea of guilty was made at an early stage of the proceedings.
Factors personal to you
8 You were born in 1989 and are now 24 years of age. You were 22 at the time of offending. You were supported in Court by various members of your family.
9 I was provided with a report from Mr Tim Watson-Munro, psychologist, of 14 January 2014. According to that report, your parents separated when you were six. Your father became addicted to gambling, which had a significant impact upon the family. You lived with your father until aged 13, but left home due to his violent behaviour. You had limited contact with him until your relationship resumed several years ago.
10 You have been married for six years and have a daughter aged five and a son aged 12 months. Your daughter has suffered health problems.
11 Your early life was dislocated and fractured and you attended eight different schools during those years. You left school in Year 9 and have had no further schooling nor undertaken any other study. You were then supported by your mother. You had various short-term jobs, including working as a roof tiler and a labourer. In 2008, you commenced work for a company involved in the installation of heating and cooling systems. A reference from Mr Michael Cardamone of Metalflex Air Conditioning Australia described you as a person of good character, a hard worker and remorseful for your offending. After your arrest, you commenced your own heating and cooling installation business, Ezy Breezy Heating & Cooling.
12 Further, in November 2013, you started a courier business with your brother operating as a driver.
13 According to the report of Mr Watson-Munro, you commenced using cannabis at 11 years of age. You experimented with other drugs, including ecstasy and methylamphetamines. He described you as suffering major depression with anxiety, and a substance abuse disorder, although I was advised by your counsel that you have been drug-free subsequent to your arrest through to the present time. He suggested that it was important that you undergo treatment, including cognitive behaviour therapy, to prevent relapse into drug use and to improve your self-esteem. The report refers to the fact that the 12 days you spent in the Melbourne Custody Centre were traumatic and that you attempted suicide on two occasions. The report further indicated that you have exhibited significant remorse for your actions.
14 According to the submissions of your counsel, and despite the admissions in the record of interview, you did not own and establish the cannabis crop, but were rather a “crop-sitter” for other persons. Further, according to your counsel, at an earlier time you offered to provide details of others involved in the enterprise to the authorities. Your counsel referred to part of the record of interview[1] where you indicated that you had no money to pay bills both in respect of your family and your extended family and were struggling to make ends meet. This, said Mr Kilias, was inconsistent with a person sufficiently resourceful to establish and maintain a sophisticated cannabis crop and, in particular, inconsistent with a person knowingly in possession of a large amount of cash.
[1]Question 205, T30
15 Mr Kilias emphasised that you had turned your life around after your arrest, including the establishment of the businesses, abstinence from drug use and a realisation of the effect of drugs in particular upon a person with responsibilities for a young family.
Sentencing considerations
16 The purposes for which a court may impose a sentence in circumstances such as these are:
· deterrence, both specific and general;
· punishment – to an extent and in a manner which is just in all the circumstances;
· denunciation and protection of the community.
17 Rehabilitation, given your age, is an important sentencing consideration. I accept the plea of your counsel that you have taken steps to change your life. You have established businesses and you worked hard to provide for your young family. You were spoken well of, and supported in court by recent employers. Your short time in gaol was difficult and led you to an awareness of penalties involved for those who cultivate drug crops.
18 I accept that it is in your interest to be treated for the significant depression from which you are suffering. I accept that any period of incarceration would be difficult for your wife and young family, although that difficulty does not attain the level of hardship necessary to warrant a grant of special mercy[2].
[2]See Markovic v R; Pantelic v R [2010] VSCA 105
19 Because of your disjointed early life, your education has been modest and this has led to restrictions in your ability to obtain and maintain employment, and the financial security that brings.
20 The circumstances of your offending are somewhat unclear. You made admissions to the police that you were the only person involved in growing the crop. However, I am not satisfied to the required standard that you were the principal in the affair and I accept the plea of your counsel that the likelihood is that you were a “crop-sitter”. I say this in particular because you were very young and unsophisticated at the time the crop was established, and it is unlikely that you had the wherewithal or financial capacity to establish a crop of that size and to purchase the necessary equipment. I further accept those parts of your record of interview where you said that you had insufficient funds even to pay the rent and bills. I accept you felt intimidated by others involved, and as a result were reluctant to disclose their involvement at the outset. In any event, there is no issue you “cultivated” the crop as that word is defined in s.70 of the Drugs Poisons and Controlled Substances Act 1981.
21 What must be said about the narcotic plants discovered is that the quantity was substantial. The combined weight of the plants was almost 100 kilograms. On any view, this is a large crop, even accepting the number of plants involved was only 39.
22 I note your plea of guilty at an early time. You are entitled to have that fact taken into account in your favour. A plea of guilty, in particular entered at an early time will always attract a sentencing discount. You have avoided the cost of a trial and spared witnesses the ordeal of giving evidence.
Prior offending
23 You have been convicted of various offences going back to 2008. A number of offences were dealt with in the Children’s Court and are not significant in this sentence. You were charged with various motor vehicle offences in 2006 and possession and use of cannabis in 2010. You were convicted of assault offences in 2011. None of the previous convictions caused you to go to gaol. All in all, while relevant, these prior convictions are not of great significance in determining a sentence in respect of the crimes for which you appear before this Court.
Sentence to be imposed
24 Taking into account all of the matters to which I have referred, I impose the following sentence:
· on Charge 1, cultivating a commercial crop of cannabis, you are convicted and sentenced to a term of imprisonment of twenty eight (28) months ( Base sentence )
· on Charge 2, theft of electricity, you are convicted and sentenced to a term of imprisonment of one (1) month;
· on the Summary Offence No. 6, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to a term of imprisonment of three (3) months.
25 For the sake of clarity, I declare that the terms of imprisonment imposed on Charge 2 and the Summary Offence be served concurrently with each other and concurrently with the sentence imposed in respect of Charge 1.
26 Given your youth and the steps you have taken since offending, I assess your prospects of rehabilitation as reasonable. As such, I direct that you serve a non-parole period of 14 months before becoming eligible for parole.
27 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 12 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct this declaration and its details be noted in the records of the court.
28 Under s.6AAA of the Sentencing Act, I state that but for your plea of guilty, I would have imposed a total effective sentence of three (3) years and nine (9) months’ imprisonment with a non-parole period of two (2) years.
29 I shall make the various ancillary orders sought by the prosecution.
30 I shall further make the order sought pursuant to s.464ZF of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample. I am satisfied that such an order is justified, given the seriousness of the circumstances of the offending and that the granting of the order is in the public interest. The order is not opposed. I inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted.
31 Yes. Anything further?
32 MR KILIAS: May it please, Your Honour, no.
33 HIS HONOUR: Yes, thank you.
34 MR KILIAS: I'm sorry, just if I may quickly, Your Honour - - -
35 HIS HONOUR: Yes.
36 MR KILIAS: Did Your Honour say 12 days reckoned as served?
37 HIS HONOUR: Yes.
38 MR KILIAS: Yes, that's - - -
39 HIS HONOUR: Is that right?
40 MR KILIAS: That's what I understood it to be. I got confused with the 14 and the 12 as I was writing. Thank you.
41 HIS HONOUR: Yes.
42 MR KILIAS: It was the 14 months, 12 days.
43 HIS HONOUR: Yes, 12 days already served.
44 MR KILIAS: Thank you, Your Honour.
45 HIS HONOUR: 28 months on top and 14 on the bottom.
46 MR KILIAS: That's right. Yes, Your Honour.
47 HIS HONOUR: Yes. You may have a seat, Mr Kassar. Please allow Mr Kassar a few moments to speak to his family and counsel as I leave the court. Temporarily adjourned.
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