Director of Public Prosecutions v Krasniqi

[2024] VCC 1459

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00227

DIRECTOR OF PUBLIC PROSECUTIONS

v

METUSH KRASNIQI

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF SENTENCE:	17 September 2024
CASE MAY BE CITED AS:	DPP v Krasniqi
MEDIUM NEUTRAL CITATION:	[2024] VCC 1459

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Pleas of guilty – Cultivate commercial quantity of cannabis (1) – Trafficking cannabis (1) – Theft of electricity (1) – Duration of trafficking cannabis 4 months - In partnership with co-accused – Secondary role in offending but gave instructions to co-accused as to cultivation of cannabis – Lease holder of the factory – Electricity account holder – Offending committed for profit – Co-accused used factory for Manufacture of methylamphetamine – No such allegation or charge in respect of this accused

Legislation Cited:      Drugs, Poisons and Controlled Substances Act1981 (Vic); Crimes Act 1958 (Vic)

Sentence: Convicted and sentenced to 4 years’ imprisonment with non-parole period of 20 months’ imprisonment – 36 days’ imprisonment pre-sentence detention declared as having been already served as part of the sentence – s.6AAA Sentencing Act1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Ms G. Morgan	Marco Man Lawyers

HER HONOUR:

1Metush Krasniqi, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis, one charge of trafficking cannabis and one charge of theft of electricity.

2The maximum penalty for cultivating a commercial quantity of cannabis is 25 years' imprisonment, for trafficking in a drug of dependence, 15 years' imprisonment, and for theft, 10 years' imprisonment.

3In sentencing you I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards the offences.

4Further, Parliament has seen fit to mandate a term of imprisonment involving a head sentence with a non-parole period in relation to Charge 1 unless an exception applies.  It is properly conceded by you that you do not fall within any of the exceptions.

5Your offending was opened by the prosecution as follows.

6You were 34 years old at the time of the offending, but you had turned 35 at the time of your arrest, and I understand you are now 37 years old.

7You were living in Gerald Street, Sunshine North, at the time that you committed the offences.  Your co-accused is Darcy West, who is 31 years old and was living in Hilbert Road, Airport West, at the time of the offending.

8I was told that Mr West is making application to be dealt with via the Drug Court.

9You and the co-accused are known associates.

10On 29 December 2022, police executed search warrants under s81 of the Drugs, Poisons and Controlled Substances Act1981 at an address in Ardoch Street, Essendon, relating to an investigation into drug trafficking by a Reham Margus.

11Police seized a number of items in the course of the search including Margus' mobile phone.

12An analysis of the phone revealed messages on an application called 'Signal' which is an encrypted application with 'disappearing messages' activated on it.  I was told that the application is commonly used by drug traffickers and other criminal offenders.

13Investigators found messages between Margus and Mr West.  An analysis of the messages revealed most discussions centred around drug trafficking, most notably methylamphetamine.  Some of the messages included a video depicting West running his hands through a large amount of cannabis.

14Based on a study of the photos and messages, investigators concluded that a factory was being used to manufacture methylamphetamine and to cultivate cannabis.

15Police obtained call charge records belonging to West's mobile phone for a period between 13 December 2022 and 23 February 2023.  This revealed that West had been in contact with a phone number, which, as it turned out belonged to you.

16Police deduced from locational data as to the whereabouts of your phone in Sunshine and further analysis of surrounding areas revealed that the location where it was found was an isolated industrial estate within Sunshine.

17Further investigation established the location of a clandestine laboratory, and a cannabis crop located in a factory at 43 Market Road, Sunshine.

18Police established that you were the lease holder of the factory and the electricity account holder with the relevant electricity company.

19The prosecution case against you is that you and West utilised the property at 43 Market Road, Sunshine, to engage in illegal cultivation of cannabis.  West also used the premises for manufacture of methylamphetamine, however, there is no allegation that you also engaged in this activity and there are no charges relating to it against you.  This is a matter by way of context only and I do not have regard to it as anything other than that in sentencing you.

20The prosecution case is that you organised for the bypassing of the electrical meter at the premises to both steal electricity and hide the illegal activities being conducted at the property.

21The prosecution opening indicated that you operated within a syndicate to traffic the cannabis made from the premises.  However, in discussion with the learned prosecutor it was clarified that in relation to the cultivation you were a principal involved in it, in partnership with Mr West.

22I was told that on 24 February 2023, at about 9.33 pm, police received a report of a burglary which was occurring at 43 Market Road, Sunshine.  In response police attended the premises at 9.47 pm and conducted a search of the immediate vicinity for anyone who may have been inside the premises.  Whilst clearing the factory police found a large hydroponic system of cannabis cultivation within five rooms of the premises, as well as a glass dish containing a white crystal substance, ammunition and long armed firearms in the office.

23The prosecution case is that you were aware of the firearms in the premises, but you had warned West to remove these.  I do not sentence you on the basis that you had any involvement in relation to these firearms.

24Subsequently, police obtained a search warrant which was executed.  Police observed that the factory was medium sized comprising five rooms containing a large cannabis crop.  A structure had been built in the middle of the factory floor to contain the cannabis plants.

25The grow rooms comprised heat lamps, fans and irrigation systems to grow the plants.  The bathroom contained a large machine which was used to harvest the cannabis.  Subsequently, the scene was attended by Police Forensic Services Chief Botanist, Ms Slattery.  Her analysis indicated that the cannabis plants weighed a total of 103.5 kilograms.  A total of 105 plants comprised the crop.  This gives rise to Charge 1, cultivate a commercial quantity of cannabis.

26The electricity company attended the premises and confirmed the presence of an electrical bypass.  The total amount of illegal usage of electricity between 16 October 2022 and 24 February 2023 was 43,846.23 kilowatts, totalling $11,333.76 worth of electricity which was stolen.  This gives rise to Charge 3.

27Police spoke to the owner of the factory who worked next door.  He said he had met the tenant of the factory who introduced himself as 'Meti', M-e-t-i.  Investigators obtained the rental agreement which showed you had become the tenant of the property on 24 May 2022.

28A search of the factory also resulted in the location of a number of items which are relevant in the case against you:

(a)   a 'tick book'.

(b)   a zip lock bag containing green vegetable matter.

(c)   loose green vegetable matter.

(d)   loose green vegetable matter in a zip lock bag; and

(e)   a bag of loose green vegetable matter.

29On 27 February 2023, police contacted you on your mobile phone.  You attended the Sunshine police station by appointment, and you were placed under arrest.  You advised investigators that you had sold your phone for bond money.

30A record of interview was then commenced, which was subsequently suspended for you to attend your residence in order for the search warrants to be executed.

31Police attended your residence in Sunshine North and executed a search warrant in your presence.  When the police informant called the same number on which he had contacted you earlier that morning, he could hear the phone ringing and found it underneath a chair cushion in the backyard of the property.

32The informant brought the phone to you, and you then admitted that it was your phone. The police informant demanded that you provide the passcode for the device pursuant to s465AAA of the Crimes Act1958, and you provided this.

33After execution of this warrant, you were taken back to the Sunshine police station and the record of interview continued.  You made several admissions to cultivating and trafficking cannabis.

34The police informant conducted an analysis of the phone seized from your premises.  Messages on the phone appear to have been deleted, however, a phone number ending 809 was found under a contact name 'Darcy New'.

35A deleted SMS message between you and West was observed which further linked your connection with one another.

36Photos on the phone depicted the following:

(a)   you within 43 Market Road, Sunshine.

(b)   CCTV cameras showing stills of the front of the factory and within the factory.

(c)   photos of the irrigation system within the cannabis crop at the factory; and

(d)   photos of large amounts of cannabis.

37The police informant also conducted an analysis of West's phone which they had seized.  His phone contained messages with you in the Signal application.  The messages were with a user named 'Motoosh', however, police established by looking at the phone number attached to the username, that you were the other party to the messages.

38The messages between you and West included references to both of you tending to the cannabis plants at the factory, as well as photos from within the factory.

39A thorough analysis of the messages was conducted – this endured between 16 November 2022 and 25 February 2023.  I was told that most of the messages pertained to maintaining the cannabis crop at the factory. 

40The following messages were contained and were referred to in the prosecution opening:

(a)   On 25 November 2022 at 6.42 am, you tell West to 'start to put the soil in the tubs'.  West states that he 'got coco and clay balls and everything we need'.  The prosecution say that West was referring to the Coco brand of soil which was located within the factory during the conduct of the search warrant.

(b)   26 November 2022 at 8.01 am, you ask West for the price of a 'ball'.  West replied stating that the price was $500 for a gram and that you would have to pay extra for the driver as well.  West stated that it was 'dynamite' and that it 'cooked me off one key bump'.

(c)   30 November 2022 at 8.45 pm, you messaged West expressing concern about an unknown person who was threatening to pull down the lights and 'flush' one of the rooms.  You also had concerns that if West changed the locks the unknown person might report you both to the police.  West responded, 'I'm gonna shoot him if he thinks he's touching anything'.  You replied, 'do what U think is best bro'.

(d)   On 1 December 2022 at 2.53 am, West told you that he had changed the padlock on the gate and had changed the lock on the office.  West said that he would fit a solid door going from the office to the factory and would include a deadbolt.

(e)   Later, at 7.33 pm that day, West sent a photo of the doorway between the office and the factory showing a temporary door installed within it.

(f)    At 7.28 pm that same day, you asked if West could 'mix them'.  West replied that he put them in a garbage bag, and he had just sold it.  He said that he got his customer back and she used to buy everything that he had for cash.

(g)   At 8.44 pm West sent a photo to you of a garbage bag on scales.  The scales showed the weight of 3.1 kilograms with West commenting, '3.1 kg minus some leaves', and he also said 'she wants to choof between 12 and 3 today'.

(h)   You and West further discussed packaging the cannabis.  You told West about the sealed bags that you had bought.

(i)    On 2 December 2022 at 6.51 pm, West told you that he would get 'Najib' to drop something to him.  When West asked for your address, you gave your address in Sunshine North.

(j)    On 14 December 2022 at 12.38 pm, West sent a photo to you depicting the cannabis plants within the main grow room (Room 1).  The photo depicted the irrigation rings around the plants.  The police informant indicated that the photo accurately depicted the set-up which was found during the search of the premises on 24 February 2023.

(k)   At 12.48 pm that same day, West sent a further photo to you of a large amount of cannabis in a black tub.  You replied, 'time to bag it up bro soak it' and West replied, 'it's all done bro'.

(l)    On 22 December 2022 at 2.14 pm, West sent a photo of himself within the cannabis crop in Room 1.

(m)     On 6 January 2023 at 9.52 am, you sent messages to West stating that you were on Fourth Avenue with Chris.  You said that Chris was being paranoid, as he did not want to go to the 'shop' because he thought they were being followed.  I was told that Fourth Avenue is the street adjacent to the factory.  Investigators believe that the term 'shop' was used as a code word between you and West when referring to the factory.

(n)   On 19 January 2023 at 9.05 am, you sent a photo to West which depicted one of the tubes had ripped.  You sent a message in reference to the photo saying, 'that's not good, I'll tape it up again'.  West responded saying, 'yeah I seen … needs to be super taped'.

(o)   On 14 February 2023 at 4.27 pm, you sent two photos to West depicting a large quantity of cannabis in three black tubs.  You said if they were okay to be left outside the room as there were no fans inside the rooms and it would be too hot.  West replied that the cannabis would need to go onto a net or it would go mouldy.

(p)   On 15 February 2023 at 4.07 am, West sent you a message saying that he was going to the factory at about 6.00 pm and he did not want to see next door.  You replied that you would be there after 6.00 pm as well and said, 'main thing they don't get mouldy then it's fine'.

(q)   On 20 February 2023 at 4.26 am, you sent a message to West saying, 'we are fucked bro, look at this, we got dobbed'.  You sent further images of messages that had been sent anonymously to Steve Raunik, stating that there was a cannabis crop at 43 Market Road, Sunshine.

(r)   A further message contained a screenshot of an email sent from Raunik to you in relation to the anonymous messages he had received.  Raunik wrote in the email that he would be planning an inspection of the property.  Raunik is the owner and landlord of the factory.

(s)   You sent a message to West stating, 'get your stuff out of there that shouldn't be there bro, ASAP please or I'm a goner'.  You continued to send messages to West telling him, 'third room ready to pull, also there's 20–25K', a reference, as I understand it, of 20,000 to $25,000, 'there, can't risk it anytime now we'll get that knock on the door'.  Further messages indicated that you emailed Raunik back and avoided an inspection being conducted.

(t)    On 23 February 2023 at 10.09 pm, you sent a photo to West of an email you had received from Raunik in relation to the burglary and police presence at the factory.  You said, 'what the fuck is going on bro, crime scene, what the fuck I am done for now … and U for all your shit there I'm done'.

(u)   You sent further screenshots of an email you received from Raunik, with West replying 'WTF say no comment to everything'.  You replied, 'I know bro, leaving your shit there has fucked me bad'.

41The prosecution relies on a number of the messages to which I have just referred to substantiate Charge 2.  I understand that you concluded the record of interview after the search and made some admissions.

42Mr Krasniqi, your offending is most serious and deserving of a punishment which is just in all of the relevant circumstances.  Your conduct must be appropriately denounced:

43Insofar as the cultivation of a commercial quantity of cannabis is concerned, I am satisfied beyond reasonable doubt that you were a principal in respect of the cultivation, apparently in partnership with Mr West.  You had taken out a lease in your name, and as I understand it, funded and arranged for the setup of the crop house, attending to the cultivation of the crop on a regular basis.  The setup of the crop house was somewhat elaborate and sophisticated, especially in view of the building within the building which contained the crop.

44The quantity of the cannabis was most significant with the weight being more than four times the threshold for commercial quantity, and the number of plants exceeded the threshold for the number of plants as well.  You engaged in the offending for profit, albeit that I understand you had incurred a number of debts because of a gambling addiction, rather than seeking to make money to lead a lavish lifestyle.

45Your trafficking of cannabis occurred over a four-month period, which is a substantial period, as is the theft of electricity.  Your counsel submitted that Mr West was superior in his role to you in relation to the cultivation as he had the knowledge and expertise in this regard.  Whilst that might have been the case initially, by the time that you were messaging one another, on the occasions to which I have referred, it is evident from the messages that you had a rather firm grasp of what you were doing and you provided instructions to West on occasion in relation to the cultivation.

46You have a most limited criminal history involving one court appearance in the Magistrates Court in February 2006 where you were dealt with for theft from a motor vehicle and a without conviction adjournment was imposed.  I understand you committed the offence when you were only 18.  On any view of things, the prior matter has negligible relevance to the matters for which I now sentence you.

47In assessing the seriousness of your offending, I accept that you bore a good deal of risk as the premises were leased in your name.  I was told by your counsel that you had hoped to be able to use profits from your offending to address your debts, however, because of setbacks and your own contribution to the costs of the setup, you ultimately received little financial reward.  It was accepted that you were to receive a share of the profits from the sale of the cannabis, which was found by police, so you stood to gain a substantial sum of money from this enterprise.

48I take into account your background as follows:

49You are the oldest child from a sibship of four.  You have a brother who is 35 and works as a carpenter, another brother who is 30 who works as a plumber and your sister is 25 and is employed as an architect.  Your parents are originally from Albania.  Your father worked as a carpenter and continues to do so on a part-time basis, although he is now 68 years old.  Your mother previously worked in a call centre but has engaged in home duties for many years now since the birth of your sister.  Your family is supportive of you, albeit that they are disappointed in your offending which brings you before the court.

50I was told that at the time of the offending you lived in private rental premises but returned to live with your mother and father when bailed for the offences in March 2023. 

51In terms of your education, you attended a government secondary school in Taylors Lakes, but you did not complete your schooling, leaving several months into Year 12.  You then took on a labouring role for about a year and after this commenced work for a flour mill company.  You started as a packer and forklift driver at that company and in about 2010 you did a course which enabled you to work in the mill itself.  A reference from your employer indicated that you are currently working in three different roles for the company operating machinery related to the milling industry and that you hold a very important position in the business, having worked there now for 16 years.  I was told that the company plans to relocate to Ballarat, and it remains to be seen as to whether you would seek or be given further employment in those circumstances.  However, it is clear that you have a solid work history, which is a matter in your favour.

52I was told that you have had two significant romantic relationships.  You were engaged to a woman who was Turkish when you were in your mid-20s.  However, she lived interstate, and the relationship was challenged by the distance between you.  There was also some opposition from your father to you marrying a woman who was outside your culture.  You see the loss of the relationship as an opportunity for happiness that you missed. 

53More recently, you have been in a relationship for about three years with another woman.  However, the relationship was tumultuous and stressful which apparently led to an escalation in your gambling problems.  This then negatively impacted upon the relationship, which ultimately ended soon after you were bailed in April 2023.

54I was told that you suffered from a gambling addiction for most of your life.  You started in your teens when you would regularly place bets on horses and sporting events at the local TAB.  By your early 20s you had started to use online gambling platforms, especially Sportsbet, and you would go through periods where you sustained significant losses, often losing your entire pay packet in one day.  You would gamble more often when you were feeling low or you had a bad day, or when you were feeling lonely.  You would then resort to payday loans and other short-term finance or loans from friends or family.  You estimate that you lost more than $700,000 over the course of your gambling addiction.  You have made efforts in more recent times to pay off your debts and I received documentation in this regard which indicated that you now owe approximately $8,000, or at least that was the amount owed as at the time of the plea hearing.  I understand that some of the entities from whom you borrowed had outrageous interest rates for repayments.

55I was told that since you were bailed in March last year you had done a number of positive things to address your gambling problem.  The first thing that you did was to tell your friends and family the true extent of your addiction.  I was told that many of those closest to you were aware that you had trouble in this regard, but they were not aware of the scale of this.

56You have engaged in two periods of help through counselling with EACH Social and Community Health, with your first engagement in May last year where you attended seven phone counselling appointments.  More recently you attended a further two appointments and actively took part in these sessions, as evidenced from a letter provided by Mr Bessas, therapeutic counsellor, Gamblers Health Eastern.  Also, in February this year you registered for self-exclusion with 'Betstop', which is a national self-exclusion register.  This means that you can no longer sign up for an account on any online betting service.

57Since 22 May this year, you have been attending weekly psychological counselling with Pantea Kousari-Rad, to whom you were referred by your general practitioner for assessment and management of severe symptoms of anxiety and depression.  Your sessions have focused upon psychoeducation regarding your gambling temptations and behaviour, and you have displayed dedication and commitment to therapy according to the report provided by your psychologist.  Your counsel sought further time to have your psychological state further assessed with a view to addressing me further in relation to hardship whilst in prison in keeping with Verdins principles. However, I was advised via email through my associate, and this has been confirmed today, that nothing further is relied on in this regard.

58In sentencing you I allow for a significant discount in the sentence that you would otherwise receive in view of the fact that you entered pleas of guilty at the first reasonable opportunity in circumstances where the matter resolved on the first day of the committal hearing without the need for any witnesses to be called.  I understand that at that stage you were facing even more serious charges such that you are entitled to receive a significant discount.  In taking the course that you have, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.

59I am satisfied from all that has been contained in the character references which were tendered on your behalf and from your co-operation with police from the outset of the investigation, once your phone was discovered, I should say, that you have expressed remorse and shame in relation to your offending.  It is to be hoped that you have insight into the seriousness of what you have done, not only insofar as it affects you and yours, but insofar as it had the potential to, or did in the case of your trafficking activity, to negatively impact others in the community.

60I accept that you are of otherwise good character, and you have good family support, which was evidenced by the attendance of your mother and two of your brothers at these proceedings, as well as the numerous character references which were supportive of you and your otherwise good character.

61I also make an allowance in your favour due to the extent of your admissions to police, which, in my view, resulted in the prosecution being able to prove the extent of your criminality, especially insofar as the trafficking charge was concerned.  However, your admissions in relation to the cultivation setup and what you have said in relation to your investment in the cultivation, also sheds light on the level of your criminality which might not have otherwise been known to the police.

62As your counsel acknowledged, whilst your gambling addiction is an explanation for you embarking on such serious offending, it is not an excuse, nor is it mitigatory.  Having said this, your moral culpability, which I find is high, would have been even higher if you had engaged in the offending for pure profit rather than trying to pay debts from a gambling addiction.

63You have previously spent about a month on remand for this matter, and I factor in that this will be your first time in gaol having reached your 30s without committing criminal offences save for the fairly minor matter when you were younger, many years ago now.

64I take into account in a general way the report of your treating psychologist but note that no Verdins considerations apply in your case.

65In all the relevant circumstances, I find that your prospects of rehabilitation are guardedly good, and I place minimal weight on specific deterrence.  However, I must place strong weight on general deterrence in a bid to deter others from behaving as you have.  Drugs are a scourge on our society and has been made clear that anyone engaging in activities such as those in which you have engaged ought be the vehicle for a strong message to the community that such conduct will not be tolerated.

66It is property conceded that nothing short of a head sentence with a non-parole period is appropriate in your case.  However, I am of the view that it is also appropriate to impose a sentence which allows for a substantial gap between the head sentence and non-parole period.

67In sentencing you, I have had regard to current sentencing practice and the sentencing statistics, including the cases referred to by your counsel, but also noting that current sentencing practice is but one and not a controlling factor in sentencing.

68After considering the weight which must attach to all relevant sentencing matters in your case, I have arrived at a sentence which in my view does justice to the weight which needs to attach to all relevant sentencing considerations in view of my assessment of your prospects of rehabilitation, which I consider are good.

69Could you please stand up.

70You are convicted of each of the offences. 

71I note that there are no ancillary orders sought by the prosecution in this matter. 

72You are sentenced to the following periods of imprisonment:

73Charge 1, three years, nine months.

74Charge 2, 12 months.

75Charge 3, three months.

76I direct that two months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of four years' imprisonment.

77I direct that you serve 20 months before becoming eligible for parole.

78I declare that you have already served 36 days by way of pre-sentence detention, which will be deducted from the sentence imposed today.

79If not for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years.

80Take a seat please, sir.  Anything arising.

81MS PAGANIS:  No, Your Honour. 

82MS MORGAN:  No, Your Honour. 

83HER HONOUR:  Alright.  Yes, thank you, could you please remove Mr Krasniqi.  Thank you, we will now adjourn.

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