Director of Public Prosecutions v Krasniqi

[2016] VCC 112

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00379

DIRECTOR OF PUBLIC PROSECUTIONS

v

YETON KRASNIQI

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2016
CASE MAY BE CITED AS:	DPP v Krasniqi
MEDIUM NEUTRAL CITATION:	[2016] VCC 112

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Ms N. Kaddeche

HIS HONOUR:

1Yeton Krasniqi, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity, which carries with it a maximum penalty of 25 years imprisonment and one charge of theft of electricity, which carries with it a maximum penalty of ten years imprisonment. You have also have pleaded guilty to three summary charges. Summary Charge 4, use of drug of dependence, namely Cannabis L., I find the charge proven and pursuant to s.76 of the Sentencing Act I dismiss that charge. The two other summary charges, 6 and 7, relating to possession of a prohibited weapon, namely two extendable batons, Summary Charge 6, and a pair of knuckle dusters, Summary Charge 7, offences which carry with them a maximum penalty of two years imprisonment, and/or 240 penalty units.

2The circumstances surrounding your offending are that on 13 November 2014, you were present at a house at 29 North Street Ardeer, which had been converted to cultivate a commercial quantity of cannabis in various rooms.

3In room one, 12 plants were found, weighing 43.78 kilograms.  In room five, four plants were found weighing 19.1 kilograms and a further 18 plants were discovered in the kitchen cupboard weighing 2.8 grams which were in a very perilous condition, as opposed to the plants which were found in rooms one and five which were in fresh condition.

4When it was put to you that there were in fact 34 plants in the premises, you denied it, maintaining that there was but 16.  It is plain from your responses in your interview such as they were that they were truthful responses and I accept that you were completely unaware of the 18 plants in the kitchen cupboard which had 2.6 grams. The prosecution case is that the total weight of the materials found in rooms one, five and the kitchen cupboard, together with the cannabis found in room four totalled 68.422 kilograms, being a commercial quantity by weight.

5A commercial quantity by weight of Cannabis L. is 25 kilograms, thus the amount that you were sitting was well in excess of twice the commercial quantity.  As is typical, the electricity supply had been bypassed at the meter in order to steal the electricity for the purpose of cultivating the crop.  During the course of your record of interview, apart from admitting knowledge of the 16 plants, you admitted that you had been at the address for some four months.  That you were to get paid $5,000 for every completed three months and that if you stayed another two months, you would be getting $10,000.  But you had not received any payment in relation to the past three month period.

6You admitted to sitting the cannabis crop for a period of four months and this is consistent with the period of time being 123 days that the electricity had been bypassed.  Thus, in relation to all your statements, you have been truthful to the police and as a result of your truthfulness the indictment does not cover a few days before the period of your apprehension on 13 November 2014, but rather the whole of the period that you admitted to from 24 July 2014 to your date of arrest on 13 November 2014.

7In so confessing, you have assisted the authorities beyond that which they could otherwise prove in terms of the length of your involvement.  In Latina v The Queen [2015] VSCA 102 in the joint judgment of Redlich and Kyrou JJA. Their Honours had to deal with circumstances such as that and at such as before me. At paragraph 17 among other things, their Honours observed:

"Third, the principle has been applied where an offender, responding to complaints as to the commission of an offence, makes admissions which disclose the commission of further offences. We entertain no doubt that the principle may also have application where the disclosures made by the offender do not relate to a new charge but show that the offence committed was of a more serious order than was known by or would have been discoverable by the investigators. It is clear from the consideration of the authority to which we have referred that it is entirely consistent with the policy underlying the principle that it may have application even though investigators may be able to establish that an offender has committed a specific offence. If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.”

8Their Honours during the course of their considerations have earlier referred to the R v Ellis, 1986, 6 New South Wales Law Reports 603 and more particularly, R v Dorin, 2005, VSCA 271 in relation to this matter.  Thus, your admissions in this case have enabled the prosecution to assert offending of a more grave kind extending over a period of four months which could not otherwise have been done.  Though it was plain that the crop had been growing for that period of time.

9I therefore discount the sentence for your cooperation in order to acknowledge the assistance that you have given in that regard in admitting to an offence of greater gravity.  This of course is a discount I allow in addition to your pleas of guilty which I will come to in due course.  At the time of commission of these offences, you were aged between 20 and 21.  Your role was simply as a crop sitter.  When I make that observation, I am not in any way diminishing the importance of crop sitters, for they fulfil an essential role in the cultivation of crops such as this.

10You are one of six children.  You had difficulties at school and were bullied.  Since your arrest, you have proven yourself to be one who is determined to rehabilitate yourself.  In that regard, you were placed on the CISP Program until you were committed to this court.  During the time of that CISP Program, the reports were entirely positive in relation to you, as evidenced by Exhibit YK5.  The report of Jessica Narayan dated 27 February 2015 in which she reports among other things, the following:

"It was identified that Mr Krasniqi wished to address issues related to substance use and mental health issues.”

11A little later in her report, she continues:

"Since commencing CISP, Mr Krasniqi has significantly decreased the amount of cannabis he consumes and has remained abstinent from methamphetamines ice.”

12Later:

"Since commencing CISP, Mr Krasniqi has attended all seven CISP case management appointments and rescheduled once.  Mr Krasniqi has engaged well within CISP case management and treatment agency appointments and is observed to be receptive to the support being offered by relevant health professionals.  At his most recent case management appointment, Mr Krasniqi reported employing strategies taught to him during psychologist sessions around improving his overall wellbeing.  He showed the writer a wellbeing plan he had developed with psychologist Ms Patti around healthy eating, exercise, hobbies/activities and gradual cannabis reduction.

“In the previous month, Mr Krasniqi has showed motivation to complete CISP successfully and that he is eager to change his old habits.  He currently reports he has not used illicit substances in the past week".

13Upon your arrest, you were incarcerated and served 23 days imprisonment prior to being released on bail.  This 23 days of custody are the first time that you have been in custody and I accept that they provided a salutary experience for you and I am satisfied it motivates you in part towards your rehabilitation but your rehabilitation is not only motivated by that.  I am satisfied that you have a genuine desire to make good your life.

14I have mentioned your family, but briefly.  Your mother, who is approximately 58 year old, suffers from schizophrenia and this has had quite devastating effects for her.  You have responded by becoming her principal carer and are in receipt of a carer's allowance.  The scenario in that regard is set out in the letter of your older sister Nadia Krasniqi which became Exhibit YK2, in which she writes:

"Our mum Latif Krasniqi has a mental illness she suffers from schizophrenia.  This has affected her in many ways as she isn't able to care for herself and needs someone to ensure she is doing the essentials throughout the day. 

“Yeton has been a carer for our mother throughout this time as my dad Shefket Krasniqi also suffers from similar mental illnesses and is unable to look after.  Yeton ensures that my mum has her meals prepared throughout the day, ensures that she has bathed and has her daily medication as she is very forgetful.  She also requires someone to calm her down when she has episodes of hallucinations as they occur at various times and while this mental illness makes her very untrusting of the people around her, Yeton has been able to gain her trust.  Yeton ensures that the daily chores are done through the house such as grocery shopping and cleaning as our mum is unable to do this for herself.  Daily activities that are considered easy for anyone else overwhelm her.  Our mum requires a lot of Yeton's time and patience and he has taken this responsibility upon himself to ensure that our mum is well looked after and can live her daily life".

15She concludes:

"I live in the same household as Yeton.  And my family and I are dedicated to supporting Yeton.  I believe he is on the right path and will continue to do so as he has all our support and guidance".

16It is plain from this material that yours is a close knit family, having migrated to Australia when you were six years old.  You have encountered some difficulties in assimilating but it would appear that you are well on the way to doing so entirely.

17The manner in which you are caring for your mother speaks to two things.  One, your own capacity to engage in that type of activity and given your mother's great need, the importance of your caring for her.  Whilst hardship only is a matter that is only to be taken into account in exceptional circumstances, I am inclined to do so in this case, for without you, your mother could not cope at home, as your father is unable to do what is necessary for her.  Our community must encourage such caring behaviour and this hardship is a matter that I do take into account.  However I will add that, even if I was wrong in doing so, the outcome would be much the same so far as the sentence is concerned.

18There is also a report of drug and alcohol counsellor Eugene Puohotaua, Exhibit YK4, dated 16 February 2015, in which the author writes among other things:

"Mr Krasniqi advised that he credits much of his feelings of anxiety and depression to having been bullied at school and victimised because he was an immigrant and academically challenged. 

“Mr Krasniqi also described how his people (Albanian speaking Kosovars) were victims of genocide at the hands of the larger and more powerful ethnic groups of the former Yugoslavia.

“The family escaped much of the genocide in the former Yugoslavia in 1999, seeking refuge first in Macedonia before being re-located to Australia when Mr Krasniqi was six years old.  Mr Krasniqi has experienced trauma and victimisation from his time at school. 

“Mr Krasniqi has had a dependence of illicit substance since the age of 15 beginning with cannabis and gradually progressing methamphetamines as his need for more substantial effect increased".

19The author also prepared a report dated 4 March 2015 in which he concluded:

"Mr Krasniqi has attended appointments with enthusiasm and engaged in all aspects of treatment.  He is well supported by his Mental Health support worker and by his family.  Mr Krasniqi is motivated to change for several reasons but family is a primary reason he says for change.”

20You are now a 22 year old man and I am satisfied are well on the way to your complete rehabilitation. This has been what you desire and genuinely so.  You have pleaded guilty.  You have always been prepared to plead guilty to cultivating Cannabis L simpliciter, but not to a commercial quantity.

21After a plea indication hearing last Friday, you entered a plea of guilty to the cultivation in a commercial quantity.  Though as I say this is a late plea, given that the matter was listed to commence as a trial today, nonetheless, it does evidence further your remorse in relation to this matter and the utility of the plea must be acknowledged.  This is a case which I would have expected to take at least a week as a trial.

22Ms Kaddeche has emphasised your rehabilitation and the importance of it and submitted that you should not return to gaol, rather your rehabilitation in accordance with the recent decision of Boulton in this case, should be seen as important, not only for you, but also for the community and I accept that submission.  In the event, it is unnecessary in my view, for you to return to imprisonment. 

23General deterrence, that is deterring others, must of course be steadily born in mind in relation to this serious offending.  Parliament has indicated how grave this offence is by setting a maximum penalty of no less than 25 years imprisonment.  Whilst this is serious offending, you as a crop sitter are towards the lower end of the range of activities that cultivating in a commercial quantity can give rise to.

24So far as specific deterrence or deterring you, I consider that to be of relatively little moment, given your rehabilitation since your arrest in November 2014.  That has given me a window to assess your rehabilitation over that period of now some 16 months, which I have already adverted to.

25There must of course be just punishment in relation to this offending and the court's denunciation of this behaviour.  In the event, I am satisfied that given the 23 days that you have already spent in custody, and if you are prepared to consent to a community corrections order, that all sentencing principles will be appropriately addressed.  I have of course born in mind the fact that you have been to court on previous occasions, albeit Children's Court in 2010 and 2011 for some serious matters, but the dispositions in relation to all three of those court appearances were without conviction.

26However, you were dealt with in June 2014 in relation to other offences which seem to be street offences by way of a fine of $1,000 with conviction.  Thus, your prior criminal history is not of any particular moment in the circumstances.  Stand up Mr Krasniqi.  If you are prepared to enter into a two year community corrections order, with conditions that you perform 200 hours unpaid community work, that you receive treatment and rehabilitation, drug assessment and treatment, mental health treatment and offending behaviour programs, together with supervision by a Community Corrections officer during that period, that will be the disposition in part in this case.  Are you prepared to enter into that community corrections order?

27OFFENDER:  Yes, Your Honour.

28HIS HONOUR:  All right.  When I say part, I am taking into account the 23 days of imprisonment.  Though I do not intend to impose that sentence and declare it.  I simply will impose a community corrections order and that order will encompass the two remaining summary offences.  Take a seat.  Yes.

29ASSOCIATE:  (Indistinct words), Your Honour?

30HIS HONOUR:  Yes.  Any corrections?

31MS FALLAR:  Your Honour, just to confirm Your Honour's sentence, with conviction aggregate sentence on all Charges 1, 2 and summary Charges 6 and 7 of two year community corrections order. 

32HIS HONOUR:  Yes.

33MS FALLAR:  Can I seek the usual warning in relation to the contravention of CCO which could give rise to - in itself the three months, just a formality.

34HIS HONOUR:  So what is it?

35MS FALLAR:  The formality of warning an accused person that if he breaches the CCO that he can come back before Your Honour, that he may be liable to resentencing and all of that.

36HIS HONOUR:  I generally do that later on when I tell them my usual ‑ ‑ ‑

37MS FALLAR:  Thank you.

38ASSOCIATE:  I'll give that to Mr ‑ ‑ ‑

39HIS HONOUR:  Yes.  But thank you for that, Ms Fallar.  You're not expected to know all my practices.

40MS FALLAR:  All right.

41HIS HONOUR:  Destroy that.  All right, just stand Mr Krasniqi.  That community corrections order is there to assist you, to continue on your rehabilitation.  It lasts for two years.  If you breach that order, you will not be brought back before some magistrate.  You will not be brought back before another Judge of this court, you will be brought back before me.  So when in doubt, do not.  Continue on.  I congratulate you on your efforts in relation to your mother in particular.  I know how difficult these things can be and how much work is required behind the scenes.  So well done there, continue on.

42OFFENDER:  Thank you, Your Honour.

43HIS HONOUR:  Yes, take a seat.  I think I will just simply stand down.  The jury panel will be ready shortly will it Mr Tipstaff?

44MR TIPSTAFF:  They should be, Your Honour.

45HIS HONOUR:  All right, just give me a moment.  Ms Waters, can you just make sure that you've got that list.

46ASSOCIATE:  Yes, Your Honour.

47HIS HONOUR:  Have you got my address to the jury material?

48ASSOCIATE:  Yes, Your Honour.

49(At this stage the court proceeded with another matter.)

50(Short adjournment.)

51HIS HONOUR:  Sorry to bring you back Ms Kaddeche.

52MS KADDECHE:  My apologies, Your Honour, I'm not robed.

53HIS HONOUR:  No, no, that's fine.  Just an administrative problem.  Charge 1 did not have on the orders a commercial quantity as a particular.

54MS KADDECHE:  That's correct.

55HIS HONOUR:  So unfortunately, I am going to have to ask your client to re-enter into the community corrections order.

56MS KADDECHE:  Yes, Your Honour.

57HIS HONOUR:  So if you just ensure that the other one is destroyed.  We will get you a copy of the new order.  Yes, 2.15.

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