Director of Public Prosecutions v Latif, Niyazi, Azmi and Latif
[2012] VCC 1827
•23 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00926
CR-12-00927
CR-12-00925
CR-12-01017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEMAL LATIF |
| SERKAN NIYAZI |
| HASSAN AZMI |
| TAHIR LATIF |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2012 | |
DATE OF SENTENCE: | 23 October 2012 | |
CASE MAY BE CITED AS: | DPP v Latif, Niyazi, Azmi & Latif | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1827 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – Pleas of guilty - cultivation of a commercial quantity of narcotic plants – theft (Kemal Latif, Niyazi and Azmi) – cultivation of a narcotic plant (Tahir Latif)
LEGISLATION CITED – Crimes Act 1958 – Drugs, Poisons and Controlled Substances Act 1981 – Sentencing Act 1991
CASES CITED – R v Verdins & Ors (2007) 16 VR 269; Vujasic v R [2011] VSCA 229
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Milardovic (Sentence) Mr J. Singh (Plea) | Solicitor for the Office of Public Prosecutions |
| For the accused Kemal Latif For the accused Serkan Niyazi | Mr J. Slucki (Sentence) Mr M. Tovey SC (Plea) Mr J. Slucki (Sentence) Mr P. Dunn QC (Plea) | Grigor Lawyers Grigor Lawyers |
| For the accused Hassan Azmi | Mr R Stary (Plea /Sentence) | Robert Stary Lawyers Pty Ltd |
For the accused Tahir Latif Mr J. Slucki (Sentence) Grigor Lawyers
Mr J. Oldis (Plea)
HER HONOUR:
1 Kemal Latif, Serkan Niyazi and Hassan Azmi, each of you have pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants and one charge of theft. You, Tahir Latif, have pleaded guilty to one charge of cultivation of a narcotic plant.
2 The maximum penalty for cultivation of a narcotic plant in a commercial quantity is 25 years’ imprisonment. The penalty for cultivation of a narcotic plant simpliciter is 15 years’ imprisonment, and the maximum penalty for theft is ten years’ imprisonment.
3 Mr Singh opened the matter for the prosecution as follows:
4 He told me that you, Kemal Latif, are 31 years old, which was your age at the time of offending. You, Serkan Niyazi, are 32 years old, and you were 31 at the time of offending. You, Hassan Azmi, are 28 years old, and you were 27 at the time of the offending. You, Tahir Latif, are 25 years old, and you were 24 at the time of the offending. You are the younger brother of Kemal Latif.
5
At the time of the offending, you, Tahir Latif, were living at 51 Cranwell Square, Caroline Springs. You, Kemal Latif, gave your address as 33 David Drive, Deer Park, when interviewed by police. You, Serkan Niyazi, were living at 3 Westbury Street, Cairnlea, and you, Hassan Azmi, were living at
14 Jester Court, Kings Park.
6 During the time of the offending (noting that the duration of this is a far shorter space in time in respect of you, Tahir Latif), you, Kemal Latif, were driving a red Toyota Echo, registered number WNZ 203. The car belonged to your long-standing girlfriend, Ms Marija Adzioska. You, Serkan Niyazi, drove a Daewoo Lanos, registered OQS 224. You, Hassan Azmi, drove a Passat, registered UXA 953. You, Tahir Latif, drove a silver Holden Astra, registered WWI 208.
7 In November 2011, police commenced investigations in relation to the cultivation of cannabis involving the four of you. Extensive surveillance, combined with other police investigation techniques, revealed that you were jointly involved in a large-scale cannabis cultivation enterprise within factory premises situated at 10A Mohr Street, Tullamarine. In saying this, it is accepted by the Prosecution that your role in this enterprise, Tahir Latif, was a fairly limited one, where it is not alleged that you had the necessary state of mind for the more serious offence. I sentence you on the basis that you have pleaded guilty to the less serious offence of cultivation of cannabis simpliciter which occurred in a narrower space of time.
8 Mr Singh said that two covert search warrants, over a two-month period, were executed at the factory in Tullamarine, which confirmed the existence of the cannabis cultivation. The cultivation was being carried out within three shipping containers which were housed in the body of the factory. This part of the factory had been “walled off” so that the containers were not visible upon entry into the factory. The hydroponic setup was a very sophisticated one in nature. In total, 161 cannabis plants were discovered by police, their total weight being 130 kilograms.
9
Surveillance devices were installed in a motor vehicle used by you,
Kemal Latif, and you, Tahir Latif, allowing investigators to monitor attendance at the factory address. Internal surveillance of the factory confirmed the daily attendance of either all of you, some of you, or one of you.
10 The factory at Mohr Street, Tullamarine, was owned by a Shevket Osman. The learned prosecutor said in his opening that the factory was leased to you, Hassan Azmi, from late November 2011, for $2,000 per month, and that you always paid the rent in cash personally at the end of each month. However, issue was taken with this matter at the plea, whereby Mr Stary indicated that you did not accept that you did lease the premises or pay the rent, and you also disavowed that you paid for the shipping containers which were found on the property.
11 In this regard, an invoice, which Mr Stary acknowledged was in reference to you, was found at your premises and you apparently gave false answers to police in relation to this. Mr Stary called the police informant to give evidence in relation to these matters, who said that she accepted that your name was nominated on the invoice concerning the containers but that there was no paper trail or record to support the assertions made by the prosecution and Shevket Osman in his police statement. Despite my offer to do so, the learned prosecutor indicated that he did not propose to call evidence in relation to these matters, and therefore I sentence you, Hassan Azmi, on the basis of your observed involvement in the enterprise itself, rather than paying for the rental of the premises or paying for the shipping containers as such, although, as I understand the position, as between all of you, save for you, Tahir Latif, (and perhaps others), you are responsible for the set up at the factory, regardless of who it was who physically arranged for the venue, or installed the false wall, or paid for the shipping containers and the like.
12 I return to the prosecution opening. At the factory there was an illegal electricity bypass unit installed in the premises, which gives rise to the theft charge to which the first three of you listed in the indictment have pleaded guilty. The indictment was amended in view of additional evidence to reflect that $3,330.03 of electricity was stolen.
13 Mr Singh then referred me to a number of examples of surveillance of each of you which was referable to the offending, which I will not repeat. However, it reflects a significant degree of coming and going from the premises by each of you within the period for which you have been charged. In the case of you Tahir Latif, your attendance at the factory which had no other apparent legitimate use, went beyond the parameters of the charge date, but I sentence you on the basis of the period for which you have actually been charged. In terms of optical device product, revealing actual nurturing or attending to the plants, the prosecution alleges, and it appears to be accepted by all of you, that you, Kemal Latif, and you, Serkan Niyazi, played the more serious role in respect of the commercial cultivation, with Hassan Azmi playing a lesser role. It was also accepted that you, Tahir Latif, played an even more limited role which was not referable to commercial cultivation of cannabis, but which gives rise to cultivation of a narcotic plant simpliciter to which I have previously referred.
14 Police attended at the Mohr Street factory on 8 February 2012, having twice visited the premises before then to observe the setup and the growing cannabis plants. At about 10.46 am on that day, you, Kemal Latif, arrived at the premises, entering the factory next door at 10B Mohr Street. Shortly after this, you exited the building and took a key from underneath an orange bollard on the north side of the car park area. You then unlocked the factory door of 10A Mohr Street and entered.
15 Police then attended the complex and attempted to open the door, which was locked. At about 10.53 am the door was unlocked by you, Kemal Latif, and you were arrested. Police entered the premises, where a warrant under the Drugs, Poisons and Controlled Substances Act was executed. You, Kemal Latif, were then taken to the Sunshine Police Station for interview.
16 You, Tahir Latif, were arrested at your home in Caroline Springs. Neither you, Mr Niyazi, nor you, Mr Azmi, were home at the time of police attendance, but they contacted you, and you attended Sunshine Police Station, where you were both placed under arrest.
17 On 8 February 2012, warrants were executed at your premises, Tahir Latif, as well as your premises, Serkan Niyazi, and also at yours, Hassan Azmi.
18 At your home, Hassan Azmi, police found a red notebook containing instructions on how to cultivate cannabis, as well as invoices for the rental of three 40 foot containers totalling $10,230.
19 All of you, except for Hassan Azmi, made “no comment” records of interview.
20 You, Hassan Azmi, denied being involved in the cultivation of cannabis, and said you were in the process of starting your own business in the factory and that you only saw the corridor of the factory. You said that you had no idea about the hydroponic system and that you had never been in the containers. You said that you were not aware that the cannabis was inside the factory and you did not know what a hydroponic setup looked like. You said you were not involved in cultivating cannabis with any of the other prisoners and that you only knew one of these men.
21 You initially said that you did not know Kemal Latif and that you were not sure if you knew someone by the name of Latif who lived in Caroline Springs. When asked about an exercise book found in your bedroom which contained instructions on growing cannabis plants, you answered that this could have been for games online. Also found at your premises was a tax invoice to which I have previously referred. This was in the name of an Eric Hussan for the delivery of three 40 foot containers which as I have already indicated was said to have cost $10,320. You told police that you had kept the invoice because it might be important to someone else.
22 Obviously you, Mr Hassan Azmi, were prepared to tell police a number of lies, which was effectively conceded by Mr Stary, and it is also evident, of course, from your plea of guilty to the charges.
23 As aforesaid, a statement was obtained from a Shevket Osman, who owns the factory and he said that you, Hassan Azmi, had been paying him $2000 cash each month in rent. However, I do not sentence you on the basis that this actually occurred, as the prosecution did not wish to pursue the matter by calling evidence, in the face of you denying that this was the situation. However, as I have said, I sentence the first three of you named on the indictment on the basis that you were all party to the setup at the factory, notwithstanding that it cannot be said who did what. None of you appeared to be too forthcoming in this regard, which is your entitlement but I have factored this in on the question of remorse.
24 An examination of the plants found at the factory in Mohr Street revealed the following:
· Item 1: A total of 12 cannabis plants which were in a fresh condition and measured approximately 1.2 to 1.4 metres in height. They were bushy immature female plants weighing 21.96 kilograms, excluding roots.
· Item 2: A total of 12 cannabis plants which were in a fresh condition and measured about 1.2 to 1.6 metres in height. They were bushy immature female plants weighing 21.14 kilograms, excluding roots.
· Item 3: A total of 12 cannabis plants which were in fresh condition and measured approximately 1.2 to 1.3 metres in height. They were bushy immature female plants weighing 23.94 kilograms, excluding roots.
· Item 4: A total of 12 cannabis plants which were in fresh condition and measured about 1.2 to 1.4 metres in height. They were bushy immature female plants weighing 16.92 kilograms, excluding roots.
· Item 5: Twelve cannabis plants which were in fresh condition and measured about 1.2 to 1.3 metres in height. They were bushy immature female plants weighing 20.22 kilograms, excluding roots.
· Item 6: Twelve cannabis plants which were in fresh condition and measured about 1.2 to 1.4 metres in height. They were bushy immature female plants weighing 26.04 kilograms, excluding roots.
· Item 7: A total of 54 cannabis plants which were in fresh to dried condition and measured approximately 10 to 12 centimetres in height. They were immature plants and weighed 41.7 grams.
· Item 8: A total of 35 cannabis plants which were in fresh to dried condition and measured about 10 to 15 centimetres in height. They were immature and weighed 112.4 grams.
25 Based on this information forensic scientist, Ms Slattery, who conducted the examination of the plants, formed the following opinions. She said that:
(i) Leaves and flowering heads constituted about 69 kilograms of the weight of 72 plants in Items 1 through to 6. This would equate to an air-dried weight of about 17.3 kilograms.
(ii) The plants in Items 1 to 6 had been growing for about 12 weeks, which was post nursery phase.
(iii) The 89 plants in Items 7 and 8 were immature at the time of examination, and it was not possible to accurately estimate their projected weights at maturity.
(iv) The plants in Items 7 and 8 had probably been propagated for up to four weeks.
It was not possible to quantify or predict the yield weights of the cannabis.
26 I was told that each of you indicated a willingness to plead guilty to the matters now before me on 6 June 2012 and that all of your matters proceeded by way of straight hand‑up brief save for yours, Tahir Latif. In your case, although your matter resolved to a plea on 6 June 2012, you sought to have your matter heard summarily in the Magistrates’ Court. Your application for this was refused but not on the basis of the seriousness of the matter, rather on the basis that the learned magistrate took the view that your matter ought be heard at the same time as that of the other three prisoners. Mr Stary told me that you, Hassan Azmi, indicated your willingness to plead guilty at a stage even before the service of the hand-up brief.
27 Therefore, in each of your cases, you are entitled to a significant discount in the sentence that you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence and you have saved he community the time and expense of running contested proceedings. In your case, Mr Azmi, I am prepared to make some extra allowance in this regard as you were willing to plead guilty before you were aware of the evidence alleged against you. On the other hand, I also factor in that at an earlier stage you were prepared to lie to the police.
28 You, Kemal Latif, and you, Serkan Niyazi, have spent nine days in custody before obtaining bail, whilst you, Hassan Azmi, and you, Tahir Latif, have spent two days in custody on remand before being granted bail.
29 In sentencing each of you I have had regard to the sentencing snapshot that applies to the particular offences you have committed, although these are of limited utility. I have also had regard to recent cases involving such offences in this court and in the Court of Appeal.
30 I shall now make sentencing remarks in respect of each of you individually.
Tahir Latif
31 I will now refer to you in particular Tahir Latif. You have pleaded guilty to a lesser offence than the other three offenders, which is reflected in the maximum penalty and the level of your involvement in the cultivation, as well as your accepted state of mind at the time that you were involved in the cultivation. Moreover, the dates of your offending are of a narrower scope, being for a period of four days between 4 February 2012 and 8 February 2012. However, your offending is still serious and deserving of just punishment and denunciation. Moreover, I must place significant weight on the principle of general deterrence in a bid to deter others who might be tempted to behave as you have, not to do so.
32 You were caught on surveillance devices, attending to the plants at the factory on two occasions, although it appears that you were at the factory on a number of other occasions besides this. Whilst I have my suspicions as to the deeper level of involvement than that relied upon by the prosecution, because of your comings and goings from the factory, which date back to November 2011, I put these to one side and sentence you on the basis to which I have previously referred.
33 On 4 February 2012, you were seen to enter the partitioned area with your older brother, Kemal, at a time when Kemal entered the area and checked the water reservoir with a pH tester. On 7 February 2012, the optical device catches you checking pipes in the water reservoir and exiting with a black bucket. You are behind the partition separating the factory from the cannabis containers for six minutes. It is apparent that you have taken an active role in the cultivation, albeit a limited one.
34 You were 24 years old at the time that you conducted yourself in this way, only weeks away from turning 25, you were old enough to know better, and you had the wherewithal to make your way in life as a chiropractor, an occupation which may now be in jeopardy because of your criminal conduct. The cultivation in which you took part was for the purposes of trafficking rather than personal use. The maximum penalty of 15 years’ imprisonment reflects the seriousness with which Parliament regards such offences.
35 I was told that you assisted in this enterprise to the extent that you did, without any promise or expectation of reward, and for a very short period of time. You committed the offence in the context of apparently assisting your older brother, who has pleaded guilty to the more serious offence, and I was told by his counsel that he feels responsible for leading you astray. However, although you were still a young man you were at an age and stage in your life where you should have had the fortitude and sufficient moral fibre to refuse to take part in such criminal conduct. Your counsel asked me not to blight your future with a conviction or period of imprisonment on your record. However, you must realise that it is your behaviour which has brought about this situation which now calls for sanctions from the court. Any blight on your future has been caused by you.
36 I was told that you are remorseful for your conduct. I accept that you are remorseful to the extent that you have been caught, that you have placed your future in jeopardy, and you feel a sense of shame at what you have done. On the other hand, you engaged in purposeful, deliberative conduct on more than one occasion, as opposed to making a foolish decision on the spur of the moment which you later came to regret. I also take into account the letter from Dr Joseph de Fazio and the evidence of Mr Chiodo on the question of remorse. In the circumstances, I am prepared to find that you do have some remorse for what you have done, which I take into account when sentencing you.
37 You have no prior convictions, and when arrested for this matter you were remanded in custody overnight at the Melbourne Magistrates’ Court Custody Centre. This was a chastening experience for you, bringing home to you the seriousness of your offending, if you did not appreciate that before. I factor this in when assessing your prospects of rehabilitation and the weight that I need give to specific deterrence.
38 I take into account your background, which is a background you share to a significant extent with your older brother, Kemal. You are the younger son of Sam Latif, who was born in Cyprus. Your mother is from Poland. You have twin sisters, one of whom is a chiropractor and the other is a teacher. Neither your parents nor your sisters have had any involvement with breaking the law. After progressing through primary and secondary school, you studied applied science for three years at RMIT, then studied chiropractic studies for two years. You then registered as a chiropractor, and have accrued $66,000 as a HECS debt. You are engaged to be married but, because of these matters, your marriage plans have had to been placed on hold. You had bought a block of land and planned to build on it, but again, this plan has been placed on hold.
39 In early 2011, you worked in a chiropractic practice called ‘Bounce Back’, but in March this year you commenced your own practice. You did so, knowing that you were facing criminal proceedings in relation to your arrest in February of this year.
40 Evidence was called on your behalf in a bid to place before me evidence as to the impact of certain sanctions on your ability to practice as a chiropractor. An associate of yours, Dr Francesco Chiodo, gave evidence that he had contacted the Chiropractic Registering Authority, who said that in relation to the offence you have been charged with, you would most likely be suspended from practice with the possibility of being de-registered. Unsurprisingly, he was told that the registering authority “highly frowned upon” any charge relating to drugs. Mr Oldis handed to me a registration document from the Chiropractic Registering Authority which indicated an hierarchy of seriousness with which they regarded certain dispositions for criminal offences.
41 He submitted that the imposition of a conviction upon you would certainly have a very deleterious impact on your practice or registration as a chiropractor, although acknowledging that a finding of guilt would also. However, referring to the registration document, Mr Oldis submitted that the impact would be more serious upon your future if a conviction were recorded against your name. I take these matters into account insofar as I can, as the view taken of your offending by the registering authority is somewhat speculative. It would appear that a conviction for this offence will place you at greater risk of losing registration than a non-conviction disposition, but beyond that I am unable to speculate as to what will occur in your particular case.
42 You have been working since late August of this year as a delivery driver of tiles in order to supplement your income as you commence your own business. I accept that you are at the beginning of your working life, and that you are very keen to pursue your career as a chiropractor, operating your own business. However, I must also factor in the seriousness of your offending, offending for which a number of people in similar positions have received custodial sentences.
43 As was evident from the friends and family who were at court to support you and who I note are here today, you have firm support to look to in your future, which is another positive indicator when assessing your prospects of rehabilitation.
44 In all of the circumstances, I am of the view that you have very good prospects of rehabilitation in view of the following matters:
(i) Your lack of prior convictions;
(ii) The salutary experience of being in custody, to which I have previously referred;
(iii) Your family and friendship support;
(iv) Your preparedness to work and to provide for a future for yourself and your partner;
(v) Your early plea of guilty and sense of remorse insofar as I have found this;
(vi) The fact that you have no pending matters or subsequent matters.
45 In these circumstances I need place little, if any, weight on specific deterrence. However, I must place significant weight on general deterrence as I previously said.
46 In sentencing you, Mr Latif, I have had regard to current sentencing practice and the fact that Community Correction Orders were said to be brought in by this government, in order to give sentencing judges more latitude in sentencing offenders who might otherwise be the subject of suspended sentences in some instances. The prosecution has given a revised range of sentencing which encompasses a Community Corrections Order and a wholly suspended sentence.
47 Unfortunately Mr Latif, I regard your offending as too serious to avoid the imposition of a conviction. Allowing for the strong matters in mitigation in your case, I am afraid that I cannot do justice to all sentencing considerations without imposing a conviction.
48 I had you assessed for a Community Corrections Order, as I took the view that although your offending is serious, I could do justice to the weight which I need to place on all relevant sentencing considerations by imposing a Community Corrections Order upon you if you were deemed appropriate to undergo such a disposition. You have been assessed as suitable for such an order and therefore, with your consent, I intend to impose a Community Corrections Order upon you which will endure for the next two years. I want you to listen carefully to the conditions which are part of that order as I am unable to make such an order without your consent. I propose to convict you and place you on a Community Corrections Order for a period of two years. The proposed conditions are as follows:
49 You must not commit another offence for which you could be imprisoned during the time that the order is in force;
50 You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;
51 You must report to and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
52 You must report to Sunshine Community Correctional Services by Wednesday 24 October 2012, in fact you have an appointment which you must attend on that day at 10 am;
53 You must let a Community Corrections Officer know within two clear working days of your change of address or job;
54 You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);
55 You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).
56 Further, in the next two years you are to perform 350 hours unpaid community work.
(i) You are to be supervised by the Secretary to the Department of Justice or his/her delegate;
(ii) You are to undergo any program which Correctional Services deems appropriate to address your offending behaviour;
Do you understand all of those terms and conditions, Mr Latif? You need to answer.
57 PRISONER T. LATIF: Yes.
58 HER HONOUR: Do you agree to undergo the Community Corrections Officer which I have proposed?
59 PRISONER T. LATIF: Yes.
60 HER HONOUR: I should tell you that if you breach this order in the next two years by either committing further offences punishable by gaol, or by failing to comply with any of the conditions of this order then you will be brought back before me or, in my absence, before another sentencing judge and you will be dealt with for the breach and re-sentence in relation to the offence for which I now sentence you. I would regard any breach of the Community Corrections Order as a most serious matter and if this were to occur, you would face the very real prospect of serving an immediate gaol term. Do you understand what can happen to you if you breach a Community Corrections Order?
61 PRISONER T. LATIF: Yes.
62 HER HONOUR: Having heard what the consequences may be, do you still agree to enter into a Community Corrections Order?
63 PRISONER T. LATIF: Yes.
Therefore in your case I make an order in the terms and conditions which I have previously set out.
64 If not for your plea of guilty I would have sentenced you to an immediate gaol term of 12 months.
Ancillary Orders
65 I make an order pursuant to S.464ZF of the Crimes Act for the taking of a saliva sample from your mouth by the use of a buccal swab. I make this order because of the seriousness of the offence, that the order sought was not opposed by you, and in my view it is in the public interest to obtain the sample. I should warn you that in the event that you do not co-operate in the taking of the swab, the authorised officer may use reasonable force to ensure that you comply.
66 I also make the Disposal Order which is sought by the Crown and not opposed by you.
67 You may come out of the dock and approach the Bar table in order to sign the Community Corrections Order. I ask that your counsel assist in that. You may now take a seat in the body of the court.
Kemal Latif and Serkan Niyazi
68 Kemal Latif and Serkan Niyazi, you are to be sentenced on the basis that you played the most serious roles in respect of this elaborate commercial cultivation. As Mr Tovey said on your behalf, Mr Latif, this was a significant enterprise of commercial cultivation which was conducted whilst each of you were on bail for similar offending. In each of your cases, this is an aggravating feature.
69 On 23 May 2012, His Honour Judge Bourke sentenced each of you for cultivation of cannabis simplicita. The events which gave rise to that offence occurred on 20 July 2009 when you were both arrested by police leaving premises in West Sunshine. These premises contained, to quote His Honour:
“… a typical, sophisticated hydroponic cannabis crop, located in three bedrooms and in the kitchen/lounge area. In total there were 37 plants of which 22, located in the bedrooms, were mature. The combined weight, excluding roots, was approximately 77 kilograms.”
(His Honour's Sentence, Paragraphs 8 and 9.)
70 Although the weight of the plants was in excess of the threshold for a commercial quantity, you were no longer charged with the offence of cultivation in a commercial quantity, as this was the product of resolution of your matters. You were sentenced on the basis that:
71 (A) You were acting as “crop sitters” on one day alone, being 20 July 2009; and
72 (B) That there was no evidence that you acted in any direct way to grow the plants; and
73 (C) There was no evidence of any benefit to you.
74 That matter is not a prior conviction but is relevant in assessing your prospects of rehabilitation and in assessing the weight which needs to be attributed to specific deterrence in each of your cases.
75 It means that, having been arrested and placed on bail for crop sitting 77 kilograms of cannabis in July 2009, each of you saw fit to engage in the even more serious offending for which I now sentence you. Insofar as the matter before his Honour Judge Bourke was concerned, you were convicted and sentenced to eight months’ imprisonment which was wholly suspended for two years. As at the time that his Honour Judge Bourke sentenced you, you were yet to enter pleas of guilty in relation to the matters for which I now sentence you.
76 As the maximum penalty reflects, the offence which you have committed (and when I refer to the offence I am referring to cultivation of a commercial quantity of cannabis- that offence is regarded by parliament as most serious. Moreover, I regard your individual involvement in the offending as most serious, involving yourselves, as you did, in a most sophisticated commercial enterprise. In assessing the seriousness of your offending, I bear in mind the dry weight of the cannabis insofar as I can, which gives me some idea as to the level of commerciality involved. I also bear in mind that the set-up in which you operated was of a most sophisticated and elaborate nature.
77 In each of your cases, the Crown submitted that a sentence of between two and a half and four-years imprisonment with a non-parole period of 20 to 30 months was appropriate.
78 Kemal Latif
79 I now turn to your individual circumstances, Kemal Latif.
80 You have admitted the following criminal history:
(i)On 22 June 2007, at the Melbourne Magistrates’ Court, you were dealt with for unlawful assault and the matter was adjourned to a date to be fixed.
(ii)On 6 June 2008, in this Court, you were convicted of recklessly causing serious injury and ordered to undergo an 18 month Community Based Order and to perform 150 hours of unpaid community work, as well as undergo assessment for programs to reduce the risk of re-offending. Although these past offences, in themselves, have no similarity to the matters for which I now sentence you, they demonstrate that you have disobeyed the law in the past, and despite the opportunity given you by a Community Based Order, you have continued to disobey the law.
(iii)In relation to the prior matter of recklessly causing serious injury, this related to you kicking an opposition soccer player in the face whilst he was recovering from being wounded by one of your team mates. Looking at the sentencing reasons of Her Honour in that case, it is apparent that upon assaulting him, his head snapped back and he fell to the ground and lost consciousness. He regained consciousness after one or two minutes and was taken to hospital. He suffered a deep cut over the right side of the lower lip and chipped a right upper front tooth. He suffered a tender low mandible jaw, mild tenderness of the neck and a blood clot in the right nostril. (I refer to Her Honour Judge Douglas' sentencing remarks of 6 June 2008 at Paragraph 4.) You committed that offence when you were 26 years old.
81 Mr Tovey submitted that the overwhelming view of those who knew you was that you are a gentle, generous and compassionate person and that the incident at the soccer seems to have been an isolated event. While there is the unlawful assault from the year before, I do accept that the incident at the soccer appears to be a "one off" in terms of serious violence. Of course in relation to the matter for which I now sentence you, violence forms no part of it.
82 Mr Tovey submitted that your life went "off the tracks" at the time of this prior matter and he relied upon an aspect of Mr Cummins’ report in this regard. He referred to the breakdown of a relationship which you had with a girlfriend with whom you had kept company for six years. The relationship broke down when you were twenty-five years old, which was apparently due to the fact that she was Catholic and you were of the Muslim faith. In fact, in the report of Mr Cummins, you advised him that the relationship broke off because of your Muslim name.
83 You reported to Mr Cummins that you started gambling, believing that you could predict the outcome of roulette games at the Crown Casino. You told him that after you were arrested for cultivating marijuana in mid July 2009, you would tell people you needed money for court but that you really borrowed money for gambling, believing you could make a lot of money from this and use some of it for court and some of it for your own use, including for drugs. In this regard, I understand that your drugs of choice were cocaine and cannabis. You still use cannabis to get yourself to sleep and reported that you also have used alcohol to help you sleep.
84
You reported to Mr Cummins that sometimes you would borrow the same amount of money from three different people without telling any of them that you borrowed from the others. You said that you became more heavily involved in sports betting on-line and TAB on-line. You said that when you were on drugs you were confident that you could win, despite the odds being against you. You told Mr Cummins that after serving the days on remand, you cut right down and that you are hardly gambling at all now, as you have no access to money and you have been found out. You have not been to any gambling help association as you feel too embarrassed. You told
Mr Cummins that you feel you are a vulnerable person and that you are vulnerable in relation to drugs.
85 Interestingly, at p. 2 of Mr Cummins’ report (in the last paragraph), you said that your problems started when you were arrested and charged in relation to the “affray and related matters in 2007”. You said you needed money for your defence on that occasion and that you started borrowing it. You said that this was when you got into gambling because it was how you could save more money, and that you then drifted into drugs. You did not use drugs until you were 28, according to your report to Mr Cummins. You said that when you got into drugs you took money from your parents, and sisters and friends and now have accrued a debt of about $100,000. You told Mr Cummins that you owed money for cocaine and gambling and ended up borrowing money from “loan sharks”. You said that you probably owe your parents about $30,000 to $40,000 and owed one sister $30,000 and the other $10,000. You had continued working with Quick Removals until you were arrested in February 2012. Therefore, according to your report to Mr Cummins, your problems with money, gambling and drugs, go back to 2007.
86 I was told that it was in this setting that you committed the offences for which I now sentence you.
87 I have had some difficulty with the fact that the cultivation in which you have been involved appears to have required a good deal of investment of funds and neither you nor your co-offenders appear to be too forthcoming as to precisely how the enterprise was funded. I put this matter to one side, save that it colours my findings in respect of remorse. The fact of the matter is that the enterprise has been funded and you were involved in it for financial reward, apparently in circumstances where you did owe a good deal of money to others.
88 The great shame of the situation, from your perspective and from that of your family's, is that you had qualified as a chiropractor and therefore had the wherewithal to make a legitimate living. You were raised in a loving and caring family who are very proud of your academic achievements. You completed primary and second education, obtaining an enter score of 83 in VCE. You completed a Bachelor of Science Degree through studying at Monash University, and then at Melbourne University. You then worked on a casual basis as a clerk for the National Australia Bank and travelled overseas whilst filling in time to gain entry to a chiropractic course. In 2005, you undertook three years of an Applied Science Degree, followed by two years of an Applied Chiropractic Degree, passing your course in 2009. According to your report to Mr Cummins you enjoyed this course.
89 The incident at the soccer centre attracted media attention which led to the head of the Chiropractic Department learning of the incident and you were suspended from your studies at one point. However, having been suspended from your course for three months, you finally obtained a Masters of Chiropractic in 2009. According to Mr Cummins’ report, you have not yet applied to be registered as a chiropractor because of the matter before his Honour Judge Bourke hanging over your head and because of the matters before me. You worked with Quick Removals in Niddrie whilst undertaking your studies, having worked with them for over five years, or thereabouts.
90 I was told by Mr Tovey that you purchased a house in 2009 for about $505,000, and still owe $497,000, having been provided with $50,000 by way of deposit from your father. This house is the subject of a restraining order and Mr Tovey submitted that this would be something that would be lost to you. Although this aspect is somewhat speculative I take it into account insofar as I can.
91 Mr Tovey submitted that your time on remand was an opportunity to re-assess and to step back from the way that you were behaving. He said that you had not been wholly successful in terms of drug use and gambling but that cutting back in these respects was an encouraging sign. He said that you intended to use your time in gaol, which you acknowledge as inevitable, as an opportunity to rid yourself of your dependence on drugs and alcohol, and to draw a line which you will not cross in terms of your future behaviour. I took this submission to mean that you intended to reform whilst in prison and I sincerely hope you do.
92 Mr Tovey submitted that you had exceptional potential to make an excellent contribution to the community and submitted that I ought impose a sentence which was structured in such a way as to make a significant allowance for your rehabilitation.
93 He pointed to the many references which were submitted on your behalf, which included work references and character references. The references attest to your otherwise good character and show that you are capable of positively contributing to the community. In particular, I was referred to the references of Ayad Mohamed at Quick Removals, who gives a good account of you as working for him since your university days. He also referred me to the reference of Mr Oliveira of the Hynes Group, who says he has known you for many years and speaks of the high regard in which you are held in soccer circles. He also speaks of you working as a delivery driver for the Hynes Group.
94 I have had regard to all of the character material provided on your behalf and have taken into account the evidence of Hassan Mutluel, who gave a written reference and also gave oral evidence on your behalf. He said that he had known you since you were 16 years of age, in the context of being part of the same community. As President of the North Cyprus Turkish Youth Club (that was his position, as I understand it), he said that you had made an important contribution to activities held by that association. You have also been involved with the Cairnlea Football Club which you have helped out as a volunteer in respect of club activities, and have performed coaching tasks. You have also played soccer, on and off, with that club.
95 He said that you had captained the senior side and that you are well regarded at the club. You have been involved with coaching junior players at the club and have continued to assist the nurturing of young players following your remand this year. He said that you had shown deep regret in respect of the effects of your offending on your family, that you had been a role model for the family, and were most devoted to your parents and siblings. He said that one of your biggest regrets was involving your younger brother in your criminal activity.
96 I take the character evidence into account in your favour, in that it reveals a person who is capable of contributing positively to the community, as I have already said, and shows that apart from the offending for which I sentence you and other episodes, you have led a productive life. I bear this in mind when assessing your prospects of rehabilitation and the weight I ought give to specific deterrence.
97 In terms of remorse, this is a complicated question in your case. I accept that you are sorry that you have found yourself in this predicament, and that your wrongdoing has had such a severe impact on your family, especially in view of you involving your younger brother. I also accept that you are most regretful for the implications that your offending has on your future. On the other hand, I also factor in that you chose to behave in a deliberative, purposeful fashion on a number of occasions at a time when you were on bail, having been arrested for house sitting a crop in 2009. In the end, I accept that you have some genuine remorse for your criminal behaviour, although I am not convinced that you yet have developed complete insight into its seriousness, and how the drugs that you were cultivating could impact on others. In the end, I make some allowance for remorse in assessing your prospects of rehabilitation and determining the weight I need to give to specific deterrence.
98 Save that Mr Cummins has expressed the view that you are experiencing anxiety, Mr Tovey did not seek to rely on his report in such a way that the principles in R v Verdins (2007) 16 VR 269 applied. Moreover, Mr Tovey submitted that your anxiety would end once sanctions had been imposed for your offending and so did not seek to rely on the contents of Mr Cummins’ report in such a way that his findings concerning your psychological state might have been proffered to mitigate your sentence. I must say that I appreciate Mr Tovey’s candour and realistic approach in this regard, and say the same in respect of Mr Dunn’s similar submission on behalf of Mr Niyazi.
99 I do take into account that this will be your first time in gaol whilst undergoing sentence and that your time on remand would also have been a salutary experience.
100 I understand that you have a girlfriend, whom you have expressed the wish to marry, and you have your family and friendship base to look to upon your release from gaol. These are positive matters which go to your prospects of rehabilitation and I take them into account in a positive way, although I am mindful of the fact that you did have these supports at the time you committed the offences for which I now sentence you.
101 In all of the circumstances, including your criminal history and ‘subsequent’ offence which was committed three years before the offending before me, I find that your prospects of rehabilitation are fair.
102 You are still a fairly young man but by no means have you committed these offences, for which I now sentence you, during a stage in your life which could be described as "the impetuousness of youth". You are of sufficient maturity, despite problems with gambling and drugs during the offending period, to know better. It appears to me that you were someone who was prepared to use your brains and ingenuity to make money through illicit means and thought you would get away with it. You committed the offence having been more than aware as to the serious nature of what you were doing, as you had been arrested and bailed for similar offending before this, albeit less serious offending.
103 I will do what I can to maximise your prospects of rehabilitation but I am not persuaded that a longer than usual parole period is warranted. In your case, I must place not insignificant weight upon specific deterrence. I must also impose a sentence which gives strong weight to general deterrence, the need to denounce your conduct and to impose a sentence which is just in all the circumstances. One of those circumstances is the fact that there is nothing which has been placed before me which reduces your moral culpability, which I regard as high.
104 Before leaving your individual matters and submissions put on your behalf, I should mention that I was referred to the case of Vujasic v R [2011] VSCA 229. That was a case concerning trafficking of cannabis and had some features in common with your case, but, as was pointed out in discussion, that offender did not have the aggravating feature of having offended whilst on bail. However, I have had regard to that decision and as I have said, to current sentencing practice, insofar as I can discern this, from recent authorities and the sentencing snapshot.
105 Mr Tovey submitted that the lower end of the range put forward by the Crown was not far from what he submitted was appropriate but that there was still room to give greater effect to allow for your prospects of rehabilitation. I have considered this submission carefully and, in light of all relevant sentencing considerations, I have come to the conclusion that a sentence which exceeds the lower end of the Crown range is warranted in your case, and that a shorter than usual non-parole period is not warranted in view of the weight which I must attach to all relevant sentencing considerations and in view of my assessment of your prospects of rehabilitation.
106 I shall return to your sentence after dealing with the remaining prisoners.
Serkan Niyazi
107 Serkan Niyazi, you, together with Kamal Latif, played the most active and serious role in the offending. As aforesaid, you offended whilst on bail, having been a co-offender with Kemal Latif in respect of the matter before His Honour Judge Bourke to which I have previously referred.
108
You have one prior matter: On 5 August 1999, at the Sunshine Magistrates’ Court, you were dealt with for handling stolen goods and without conviction your matter was adjourned for 12 months with an order to pay $300 to the court fund. In view of the fact that the prior matter is old, and in view of the nature of it I do not regard it as having much, if any, relevance to sentencing you for the offences before me. In relation to the prior matter, I was told by
Mr Dunn that it concerned you buying some cheap car parts when you were 18 years old.
109 You were 31 years old at the time of the offending for which I now sentence you and are now 32 years old.
110 Like Mr Kemal Latif, you were actively involved in this cannabis growing venture and have acted in a purposeful and deliberative fashion on a number of occasions.
111 Mr Dunn submitted that you were trying to make some money in a hurry, which was the reason you became involved in the venture, but expanded upon this subsequently in his plea.
112 I was provided with a number of character references in your case which indicate that you are also of otherwise good character. I was also provided with documentation which showed that you had been involved in some protracted family law matters with your former partner, as well as being the subject of intervention orders in respect of your former partner and your child. I was also provided with a number of documents indicating the expenses which you had incurred in relation to immigration concerning your former partner, in respect of family law and other financial matters, which apparently caused you to be under some financial strain at the time that you committed the offences for which I now sentence you.
113 I accept Mr Dunn’s submission that since this offending has come to light, there have been no further offences committed by you, which is also the position for all prisoners in this case.
114 At the time that you engaged in the offending you were under a good deal of pressure. You had travelled to Thailand and had a relationship with a woman who became pregnant. Upon learning of the pregnancy, you accepted responsibility for it and undertook to bring your then partner and child to Australia. I was told that your family, who were not strict in their religion, found your new situation most difficult. Your parents, who are from Cyprus, were shocked to hear that you had become a father and that your partner was from a different culture to theirs.
115 Your relationship with your partner, Jae Niyazi, was described by Mr Dunn as “a rocky one” due to cultural differences and the difficulties in trying to obtain spousal visas and the like. You come from a most loving family but they have found it difficult in coming to terms with your new situation.
116 You were then involved in protracted legal proceedings and disagreements which necessitated you selling assets to fund these. You sold your car and motorbike because you needed money for family lawyers and you needed money for lawyers in Thailand because, after the breakdown of your relationship, you were entitled to restricted access only. Mr Dunn said that it was against this background that an opportunity presented itself for you to make some money with others who were embarking upon a venture to grow some cannabis.
117 You engaged in the offending in order to pay off the debts that you had accrued, he said. At that time you were working with your brother as a plasterer/renderer in a business which you and your brothers ran. The business commenced in 2004 and is called "Extreme Rendering" which continues to run and appears to be a profitable business. I say this because of the fact that it has continued during this period and Mr Dunn said “to this very day, literally, there are projects and jobs”.
118 I take into account your background. You are the eldest of three sons and have been raised in a family environment where all members of your family have been hardworking. At the time of the offending, you were living at home, as were your brothers. No other members of your family have committed criminal offences.
119 You completed primary and secondary education, then obtained an Advanced Diploma in International Trade at Victoria University. Whilst studying, you worked for a pizza company delivering pizzas and you also worked at Officeworks at one stage. When you obtained your diploma, you were unable to find work in the field of international trade, despite many attempts to do so. Your parents then bought you a delivery van, enabling you to become a courier driver. As I have said previously, in 2004 you joined your brothers in the rendering business. You were still working in this business when, in January 2009, your partner, whom you had met in Thailand, announced that she was pregnant. You travelled to Thailand on a number of occasions to try to sort things out and support her financially. It was in July of that year that you were then caught crop sitting, which gives rise to his Honour Judge Bourke’s sentence to which I have previously referred.
120 On 23 October 2009, your child, Sammy, was born. Mr Dunn said that these events are not without significance in terms of the commencement of your offending (leaving aside the matter when you were 18 years old). It does appear that, having led a law abiding life save for the prior matter when you were 18 years old, you commenced to offend in the year when you learned of your partner’s pregnancy and that events relating to this then unfolded. On the other hand, having been arrested in July 2009 for crop sitting and being bailed for this, you were able to conduct yourself in a law abiding fashion until earlier this year when you engaged in even more serious conduct.
121
Like Mr Tovey, Mr Dunn did not seek to rely on the report of Mr Cummins, in your case, to raise any matters pursuant to R v Verdins.
122 When I expressed to your counsel the difficulty I had in reconciling your reportedly poor financial situation at the time you committed the offence, with the fact that you had engaged in an apparently expensive cannabis crop venture, Mr Dunn said that this was a joint offence which involved a number of people, some of whom invested and some of whom had obviously borrowed. He said that at the time of the offending you had all sorts of financial problems and became one of a number of people who were engaged in the enterprise in the expectation of financial reward.
123 In the end, I accept that at the time of your offending you were experiencing personal and financial turmoil which led you to behave in the way that you had- in circumstances where you had previously resorted to criminal activity three years earlier in the context of turmoil which had commenced at about that time. Whilst I take this into account as a motivating factor for your offending, there is nothing before me which reduces your moral culpability, which, again, I regard as high.
124
I take into account that apart from the matters for which I sentence you and the matter before Judge Bourke, you have been a law-abiding, hard-working citizen for many years. I accept that you are of otherwise good character. When I say "otherwise" I am referring to the matters before me, before
Judge Bourke and the far less serious matter committed when you were 18 years old.
125 Your present situation is that whilst you are living at home, your child and partner live separately. You are most concerned that if you go to gaol for a protracted period you are uncertain as to what will happen in relation to your child. At the time of the plea hearing, Jae and your child were living in rented accommodation in Rosanna and you had weekend access, collecting your child every Friday and returning him the following Sunday. You are very concerned that your partner and child might not remain here whilst you are in gaol. Your child is now three years of age and has bonded with your parents and with you. I take these matters into account insofar as I can. Your concern for the situation will weigh upon you whilst you are in gaol.
126 I take into account your character references and the character evidence of Dory Zeine, who gave evidence on your behalf.
127 He verified that you came from a hardworking and loving family and he also verified the circumstances which gave rise to your offending in 2009 and your present offending. He said that you were regretful for what you had done and that you were of very good character which compelled him to take time from his business in order to support you at court. He confirmed the reaction of your family to the news that you were a husband to a woman who was from a different ethnic background.
128 Like Mr Latif, I accept that you are regretful for what you have done, as it finds you in this predicament. However, in view of the matter in 2009 and your current offending, I find that your degree of remorse is limited, a matter which I have factored in when assessing your prospects of rehabilitation; as in the case of Mr Latif, I accept that you have some remorse for what you have done.
129 You have good family and friendship support, a good work ethic and have the prospect of the care of a son to look to when you are released from gaol. Your criminal history is not as serious as Kemal Latif’s, but factoring in your more recent offending, as against the matters to which I have referred in respect of family support, your son and work ethic, I find that your prospects of rehabilitation are fair to fairly good. In your case, I must place fairly significant weight on specific deterrence, being mindful that you have already spent some days on remand and that this will be your first time in gaol.
130
In your case, I am not persuaded that there should be much of a greater than normal disparity between the head sentence and non-parole period. However, in view of the matters put to me and in light of your less serious criminal history than that of Kemal Latif, I will make some allowance for this in sentencing you. You are still a relatively young man but again, you have not committed these offences as an immature or unintelligent one. Like
Kemal Latif you committed this offence, having been arrested and bailed for similar offending.
131 Bearing in mind that I regard your prospects of rehabilitation are slightly better than those of Kemal Latif and I place slightly less weight on specific deterrence in your case than his, I will impose a sentence which reflects this insofar as the non-parole period is concerned.
132
Insofar as the Crown’s submission on range of sentence was concerned,
Mr Dunn relied on the sentencing snapshot for cultivation of a commercial quantity of cannabis and said that the statistics would support a sentence toward the bottom of the range. Again, I have considered Mr Dunn’s submission, but I am unable to do justice to all relevant sentencing considerations by imposing such a sentence in your case. I shall return to the sentence which I will impose after I have dealt with Mr Azmi’s situation.
Hassan Azmi
133 Hassan Azmi, your role in this most serious offending is slightly less serious than that of Kemal Latif and Serkan Niyazi. As I have previously said, your role is not said to have encompassed purchasing the shipping containers or paying rent for the premises. Nevertheless, you were jointly involved in a criminal enterprise of some sophistication, which was rather elaborate in nature. Like Kemal Latif and Serkan Niyazi, you have offended over a period of some 19 days and by virtue of the product of various surveillance devices, you were seen actively engaging in the enterprise.
134 You have no criminal history or matters pending. I was told that you first intimated an intention to plead guilty to the matters, for which I now sentence you, in a letter to the Office of Public Prosecutions on 16 March 2012 which was prior to the service of the hand-up brief. You subsequently entered a plea of guilty on 6 June 2012 at the committal mention stage. Therefore, you have indicated a preparedness to plead guilty at a very early stage, which I take into account in your favour.
135 It was submitted by Mr Stary that your preparedness to plead guilty at such an early stage, together with character reference material and expressions to Patrick Newton, psychologist, evidences your remorse for your offending. As against this, when you first spoke to police you told a series of lies, but it does seem that you subsequently had a change of heart. I accept that you are regretful for the predicament you are in, in circumstances where this is your first episode of offending. I must also factor in however that you engaged in deliberative and purposeful conduct, like the others, over a number of weeks, although to a lesser extent than they. Therefore, in the circumstances, I accept that you have some remorse for what you have done and the consequences this has for you and for those around you. However, I do not find this remorse is complete in that you have not expressed concern for those who may have been affected by distribution of the cannabis that you were cultivating, in any insightful way. In so finding, I am aware that you are guilty of cultivating a commercial quantity of cannabis as opposed to trafficking the substance. However, you were cultivating the cannabis to a commercial level which entailed the inevitable sale of the substance to others.
136 I also take into account, in your favour, that you have no subsequent or pending matters.
137 Like your co-offenders, you came from a loving and hardworking background. Your family are of Turkish/Cypriot background, who came to Australia in 1984, where you were born shortly thereafter. Your father, who impressed as a fine man and a most loving father, gave evidence on your behalf. He has been employed in the petrochemical industry as a maintenance worker for a number of years. Your mother has supported you in her work, being home duties. You also have a sister, who is now 26 years old. She attended court for the plea hearing. She and your parents, who have never been in trouble before, are most supportive of you and you have them to look to upon your release from gaol.
138 Like your co-offenders, you completed your education having successfully completed Year 12. You then went on to work in the maintenance and construction industries.
139 Your father told me that at about the time that you completed VCE you suffered a serious knee injury. This was verified by other material submitted on the plea. You played competitive soccer, but for the past ten years you have had problems with your knees and your health generally. In 2009, you had another serious knee reconstruction and since that time you have had problems controlling your weight. Your father said that you spent a lot of time at home doing nothing and have not had a regular work history. Your father has tried to help you obtain work and as a result of this assistance you did some work at the petrochemical company where your father has worked. You have not worked for the past six to 12 months and have been in receipt of social security benefits. Your father said that you spend that money on your computer and on food and petrol. Your parents have assisted you financially and have bought you a motor vehicle. They have also supplemented your unemployment benefit. Your father said that you have no money in the bank; he said that you struggle with your weight and that you struggle physically, as well as struggling with the prospect of work.
140 It was evident that your father has been devastated by your offending and is most concerned for your well-being.
141 Mr Stary submitted that you had endeavoured to work at every opportunity but that you did so in a deteriorating physical and mental environment. As against this, I note that you were able to actively engage in cultivating a cannabis crop on a repeated basis only earlier this year. Mr Stary submitted that in your case, all principles in R v Verdins were invoked, and he referred me to the report of Mr Newton, psychologist, dated 27 September 2012. Mr Newton saw you on 11 July and 20 September 2012 and said that you participated in two extended clinical consultations. He said that he carried out a comprehensive evaluation of your mental state, including your mood, thought processes, personality functioning and degree of insight. He commented that you impressed as a rather immature man for your age and that you presented as being consistently downcast throughout his dealings with you.
142 You reported to Mr Newton that you had experienced long-standing depressive symptoms as a result of poor health and the difficulties this posed for you. According to you, enforced inactivity, which had resulted from your limited capacity to work, had caused significant boredom and chronically lowered mood. Your injuries had made it difficult for you to participate in social activities and limited your ability to work or engage in other physical activities. This had reinforced your boredom and isolated you from sources of social support and recreational input, which might otherwise improve your mood, according to Mr Newton. You had also expressed distress as a result of chronic pain caused by your injuries. You did not like to use prescribed pain medication on a regular basis because of its impact on your level of alertness and general sense of wellbeing.
143 You reported that you had never experimented with any form of illicit substance and that your offending was not motivated by or connected with any personal drug use on your part.
144 You reported to Mr Newton that you had become involved in the cultivation enterprise in order to have funds to pay credit cards and other debts which had accrued on account of your difficulties in sustaining employment. You expressed your regret for your actions to Mr Newton and said that you now considered your behaviour to have been “foolish and wrong-headed”.
145 Mr Newton found that you were experiencing some noteworthy symptoms of depression. The source of these symptoms appears to have been your health difficulties in combination with the predicament you have caused yourself by becoming involved in the criminal offending. You indicated to Mr Newton that you felt that your injuries had cut you off from others and that you had become increasingly tentative in your interaction with others in recent years. I observe that on the occasion that you attended the factory for the purposes of cultivating the crops in a commercial quantity, you appear to have had the companionship of at least some of your co-offenders on a number of occasions. Whilst I accept you have suffered pain from your injuries and that these have impacted on your ability to find work, as I have said, they were not so severe that you were not able to play an active part in the cannabis cultivation in February of this year.
146 Mr Newton diagnosed your symptoms as amounting to a “dysthymic disorder”. He said that this was a persisting form of relatively mild clinical depression. Later on in his report he said that dysthymic disorder was a chronic form of clinical depression. I take from this that he means that you have a relatively mild form of a chronic type of clinical depression. You reported to him that you had significant symptoms in relation to this from the time of the onset of your knee injuries and that you were suffering the effects of this condition at the time of the offending. Mr Newton did not explain precisely what symptoms were operating at this time, so as to enable an assessment as to whether there was a causal link between these symptoms and your offending.
147 According to Mr Newton, you are at an elevated risk of developing more intense depressive symptoms and you need to engage in counselling in order to address these issues. He said that the counselling would be most effective if integrated with “a multidisciplinary pain management program and vocational rehabilitation”.
148 In terms of your cognitive functioning he found that you were able to discuss your situation logically and there was no form of thought disorder or psychosis. He said that there was no indication that your capacity to understand the wrongfulness of your actions had been compromised or that you suffer from any defect in your moral reasoning. He estimated that your intelligence level is at least average, which would enable you to benefit from counselling and other treatment, as well as indicating your ability to succeed in further study, if motivated to undertake this.
149 Mr Newton concluded that you were suffering some noteworthy symptoms of reactive depression which were initially precipitated by the effects of your knee injury and which have been made more intense by your ongoing legal problems. He said that the diagnosis of dysthymic disorder reportedly had its onset at the time of your injuries in the early 2000s and would have been affecting you at the time of your offending. Again, he did not indicate how the symptoms of the disorder would have been affecting you at that time.
150 Mr Newton commented that there is a sufficient need for treatment intervention in a bid to avoid gradual deterioration of mood as time progresses. He said that your general health, well-being, and social adjustment would also be expected to continue to decline.
151 He remarked that such deterioration in your mood would be particularly intense if you were placed in custody. He said that your chronic pain, poor general health and pre-existing depressive symptoms would all contribute to increased vulnerability within the custodial context.
152 Mr Azmi, in circumstances where you engaged in deliberative and purposeful conduct over a number of days, in league with your co-offenders, and notwithstanding that you may have been experiencing depressive symptoms at that time, I am not satisfied on the balance of probabilities, that there was any causal connection between such symptoms as you were suffering and your offending so as to reduce your moral culpability. Although I accept you played a lesser role in the offending I regard your moral culpability for the part you did play as high. Further, I am of the view that notwithstanding the matters raised in Mr Newton’s report to which I have referred and notwithstanding the submissions made by your counsel in respect of general deterrence, I regard you as a suitable vehicle for general deterrence; I am not satisfied that I ought moderate the weight that I would otherwise give to this principle. For that matter I am not persuaded that the weight that I would otherwise attach to the specific deterrence ought be moderated.
153 However, as this is your first episode of offending and hopefully your last, I need only attach minimal weight to specific deterrence and I find that your prospects of rehabilitation are quite good, in all the circumstances. I make this finding on the basis of your lack of prior convictions, your firm family support, your remorse, the fact that you have spent some days in remand, and your early preparedness to plead guilty to these offences. However, I must attach strong weight to the principle of general deterrence and to the need to impose a just punishment upon you and denounce your conduct.
154 I take into account your mental state at the time of the offending in a global or general sense, and I also take into account in a global sense, the mental state which you have experienced since your knee injuries. Further, I accept that your present mental state and health difficulties will make time in gaol harder for you than for someone who is not experiencing these. I also take into account insofar as I can, the prospect that your mental health may deteriorate whilst in prison. In this regard I will ensure that the prison authorities are made aware of your vulnerabilities and the risks identified by Mr Newton in his report as well as your medical difficulties. I take into account that this will be your first time in gaol, as I have previously indicated.
155 I accept that you are of otherwise good character as is evidenced by the character material presented on your behalf.
156 When considering the principle of parity as between you and Kemal Latif and Serkan Niyazi, the following matters separate you from them:
(i) Your lesser role in the offending;
(ii) Your lack of prior convictions and no subsequent matters in your case (In that regard I am referring to the cannabis matter for which they were previously arrested);
(iii) The absence of the aggravating feature that you committed this offence whilst on bail;
(iv) Tied in with this, your superior prospects of rehabilitation;
(v) Your medical and psychological difficulties which have invoked some of the principles of R v Verdins.
157 In your case, the prosecution submitted that an appropriate sentence was between one and a half to two and a half years with a minimum term of between 12 and 20 months.
158 Mr Stary on your behalf, submitted that you ought receive the benefit of a Community Corrections Order, or failing that, a gaol term of three months in combination with a Community Corrections Order. Failing this, he submitted that a sentence with a lower than usual non-parole period was fitting in your case.
159 I indicated to Mr Stary at the plea hearing that I did not regard the first two options as appropriate. The reason for this is that I cannot do justice to all sentencing considerations which are relevant in imposing either of these suggested dispositions. I am afraid that the only option available is a period of immediate gaol and that period must exceed three months. I have considered the Crown’s suggested range of sentence in your case and I have also considered Mr Stary's submissions in this regard. Mr Stary referred me to the sentencing snapshot in relation to cultivation of a commercial quantity of cannabis.
160
The snapshot shows that the median head sentence for offending of this type is two years three months with a non-parole period of one year, six months. Whilst allowing for the lack of sophistication in the statistics to allow for individual circumstances, Mr Stary submitted that when one considered the median sentence, the Crown’s range of non-parole periods did not allow for the matters in mitigation in your case. As I have already observed, statistics, whilst a guide, are of limited utility, such are the litany of variables as between cases. Mr Stary also provided me with a table which was prepared by the Crown in respect of numerous matters before the Chief Judge of this Court. Again I have had regard to these and to other cases insofar as I have been able, bearing in mind the similarities and differences between these cases and yours. In sentencing you, as I have already indicated, I am most mindful of those matters which separate you from your co-offenders, Kemal Latif and
Serkan Niyazi.
161 I am now going to proceed to sentence the three of you, but I ask that you stand up at the point that I ask you to do so.
162 Firstly, in relation to each of you I make the disposal order, which is not opposed.
163 Secondly, I make an order for retention of the forensic sample which is sought in your case, Mr Azmi, and which is not opposed by you.
164 Thirdly I make a compensation order in respect of the electricity you each stole from Momentum Energy, in the sum of $3,330.03.
165 Please stand up Mr Latif
166 In respect to Charge 1 you are convicted and sentenced to three and a half years' imprisonment.
167 In respect of Charge 2 you are convicted and sentenced to two months' imprisonment, two weeks of which is to be served cumulatively with the sentence on Charge 1, producing a total effective sentence of three years, six months and two weeks. I order that you serve two years four months before becoming eligible for parole. I declare that you have already served nine days as part of this sentence.
168 If not for your pleas of guilty I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a non-parole period of three years, three months imprisonment.
169 You can sit down please.
170 Please stand up Mr Niyazi
171 In respect of Charge 1, you are convicted and sentenced to three and a half years' imprisonment.
172 In respect of Charge 2 you are convicted and sentenced to two months imprisonment, two weeks of which is to be served cumulatively with the sentence on Charge 1. This produces a total effective sentence of three years six months and two weeks. I order that you serve two years, two months before becoming eligible for parole. I declare that you have already served nine days as part of this sentence.
173 If not for your pleas of guilty I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a non-parole period of three years, one month.
174 You can sit down please.
175 Please stand up Mr Azmi
176
You are convicted and sentenced to two years four months in respect of Charge 1 and two weeks in respect of Charge 2, one week of which is to be served cumulatively with the sentence on Charge 1. This produces a total effective sentence of two years, four months and one week imprisonment.
I order that you serve 15 months before becoming eligible for parole.
I declare that you have already served two days gaol as part of this sentence.
177 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.
178 You may now sit down.
179 Is there anything further in relation to the three prisoners in the dock?
180 MS MILARDOVIC: No Your Honour.
181 MR SLUCKI: No.
182 MR STARY: No Your Honour.
183 HER HONOUR: I have now signed the Community Corrections Order. You can now remove the prisoners. Thank you.
184 We will now adjourn.
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