Director of Public Prosecutions v Mataj and Ors

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00020
CR 20-00021
CR 20-00022

DIRECTOR OF PUBLIC PROSECUTIONS

FATBARDH MATAJ
VALERIAN VASHJA
VIKTORJAN MARINAJ

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 July 2020
CASE MAY BE CITED AS:	DPP v Mataj & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1020

REASONS FOR SENTENCE
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Subject: cultivate commercial quantity of cannabis
Catchwords: guilty plea – very high utilitarian value – role no more than crop sitter for a single day – no criminal record – relatively young offenders – excellent rehabilitation prospects
Legislation Cited:
Cases Cited: Nguyen v The Queen [2017] VSCA 286
Sentence: 10 months imprisonment
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Cameron
For Accused Mataj	Ms V. Drago
For Accused Vashja	Mr A. Chernok (For Plea)
Mr J. Slucki
(For Sentence)
For Accused Marinaj	Mr A. Imrie

HIS HONOUR:

Fatbardh Mataj, Valerian Vashja and Viktorjan Marinaj, you have each pleaded guilty to cultivation of a commercial quantity of a narcotic plant, namely cannabis, on 9 October 2019.
The maximum penalty for the offence is 25 years' imprisonment.
The circumstances of your offending are set out in the summary of prosecution opening (Exhibit A). They are agreed facts.
On the morning of 9 October last year, the three of you were at a Thomastown address. When police arrived with a search warrant, you all ran off but were apprehended nearby.
Police found 18 maturing cannabis plants, weighing 118.62 kilograms, growing hydroponically in three rooms of the house and 77 cannabis seedlings, weighing 334.7 grams, growing in the garage.
In total, there were 95 cannabis plants which weighed 118.95 kilograms.
A commercial quantity of cannabis is 100 plants or 25 kilograms.
Mr Vashja’s car was parked in the driveway. In the house, police found a set of keys, which contained keys to the car, to the front door of the house and to a padlock to property’s side gate. There were five mobile phones and a bong, grinder and lighter, on a coffee table in the lounge room. There were three toothbrushes on the bathroom sink.
The three of you were charged and remanded in custody.
You all indicated an intention to plead guilty to the charge on the indictment at a committal mention hearing on 10 January 2020.
None of you has criminal record.
Fatbardh Mataj
When police questioned you, you said you lived at a different address in Thomastown and were at the house by mistake. You exercised your right to remain silent in relation to the cannabis cultivation allegation.
You were born on 17 March 1994 in Albania. When you were five years old, your family immigrated to Italy. Your mother, father and younger brother, 18, remain in Italy.
After you completed Year 10 equivalent at school, you left to work with your father, in construction, to help support the family. With no real future employment prospects your family assisted you financially to travel to Australia to study and make a better life here.
In October 2017 you arrived in Melbourne on a student visa and enrolled in business management studies. You were studying full time until your arrest in October 2019. You hope to your complete studies on release.
Your Counsel, Ms Drago, relied on a number of documents in support of her submissions on your behalf, namely:
·an Italian Hospital discharge letter 5 May 2015 which records you were admitted to hospital on 3 May 2015 and diagnosed with narrow QRS tachycardia. you had an ablation to correct the condition
·and Electrophysiology laboratory report dated 4 May 2015 which confirms the ablation and your correction to sinus rhythm
·Negative urine screens dated 3 January 2020, 25 March 2020 and 11 May 2020
·18 prison program certificates and
·a Prisoner education summary report
which demonstrate you have been drug abstinent in prison and completed courses and programs made available to you. At MRC you were employed in the woodwork program. Since moving to Ravenhall, you have worked seven days a week in food preparation.
Ms Drago told me you suffer from gastritis, which has been untreated in prison.
In mitigation of penalty Ms Drago relied on:
1.your early guilty plea
2.your relative youth
3.your previous good character
4.your remorse
5.your exemplary behaviour in prison
6.your excellent prospects of rehabilitation
7.your medical conditions of cardiac arrhythmia and gastritis
8.the additional hardship of prison due to your isolation from family and the anxiety of the COVID-19 pandemic
9.the risk of deportation which makes your future uncertain and may deny you the opportunity to complete your studies
When police questioned you, you said you lived at a different address in Thomastown and were at the house by mistake. You exercised your right to remain silent in relation to the cannabis cultivation allegation.
Valerian Vashja
When police questioned you, you gave the same address Mr Mataj gave. You said you had been at the house for a birthday party, with your co-offenders Mataj and Marinaj, whom you knew from your homeland. You said, because you had been drinking, you stayed the night. You said you had been at the house before and you owned the car which was parked at the address. You could not explain why you had a house key on a case set with your car keys, nor could you explain why you ran when police arrived.
You were born on 3 January 1995 in Albania.
When you were young, your family migrated to the Lombardy region of Italy, which was recently hard-hit by the coronavirus pandemic. Your family remains in Italy.
In 2017 you arrived in Australia on a student visa. You have studied and worked part time to support yourself. Having settled in Melbourne, you successfully obtained a bridging Visa.
In support of his written and oral submissions your Counsel, Mr Chernok, relied on a number of documents including negative urine screens, dated 3 January 2020 and 18 May 2020, together with a bundle of prison program certificates which show you, too, have been drug abstinent in prison and undertaken all available programs and courses.
You wrote a letter to the court yourself. In it, you explained you grew up in a very poor family. With your two sisters, you were raised by your mother in small village in North Albania. You wrote: 'To survive, we had five cows, four sheep, income came from selling cow's milk, we have no one to help us, not even our father who was working in Italy'. You met father for the first time when you were five years old. A year later, he moved the family to Italy and when you arrived Counsel provided social housing and the church help you with clothing and food. Being poor, you were bullied at school and ridiculed as a 'gypsy'. At 16, you left school to get work to help support family. Your parents live in central Malan, the epicentre of the coronavirus pandemic, and you worry for their well-being.
Mr Chernok relied on the following factors in mitigation of penalty:
1.your impoverished childhood
2.your relative youth
3.your previous good character
4.your excellent prospects of rehabilitation
5.your early guilty plea
6.your rehabilitative efforts in prison
7.the additional hardship of prison due to:
a. your isolation from family and
b. the anxiety of the coronavirus pandemic here and in Italy
8.the prospect of deportation upon completion of your sentence
Viktorjan Marinaj
When police questioned you, you gave a Brisbane address and said you had been in Australia for five months. You also exercised your right to remain silent in relation to the cannabis cultivation allegation.
You were born on 8 October 1994, also in Albania. When you were six years old your family migrated to Italy. In 2006 your father was seriously injured at work. In 2010, when you were aged 16, you left school to get work to help support the family. For four years you worked for a transport company. Then, in 2014, you went back to school and obtained a computer programming diploma.
In 2015 you got work as a forklift driver. On 2 September 2017 you collapsed at work and were taken to hospital. A Lombardy health Department report dated 4 October 2017 records you were admitted to hospital and were diagnosed with spontaneous left pneumothorax which was treated with pleural drainage. On 22 September 2017 you were readmitted to hospital with recurring left spontaneous pneumothorax. It was surgically repaired and you were discharged on 4 October 2017 with medication and recommended rest.
A further Lombardy health Department report dated 22 January 2018 records you were seen at on 22 January 2018 hospital for chest pain. A CAT scan was normal. You were given medication for two weeks and you were advised to resume normal daily activity.
In April 2019 , you arrived in Brisbane for a one-month holiday and then went back to Italy. In May 2019 you returned to Brisbane on working holiday visa. In June 2019 you travelled to Melbourne.
Your Counsel, Mr Imrie, told me, on 10 October 2019, the day after your arrest, you were due to travel to Shepparton to commence regional work.
I received a letter from your sister who is your only sibling. She is 11 months younger than you. She lives in America. She wrote you were both born and raised in the impoverished region of northern Albania. When you were small children your parents migrated to Italy. You lived at Daverio in the Lombardy region. For four years, as teenagers, you volunteered at your local church to supervise children at summer camp. She confirmed you completed a computer course of vocational school, then you got factory work but had to stop when you suffered the collapsed lung episode and your father has been unable to work since his work accident which left his left arm semi-paralysed
The prison allows your video chat with her and you speak daily. She has seen you have lost a lot of weight. She wrote you are very sorry for the trouble you have caused and your family is worried for you, because, with your lung condition, you are vulnerable to flu like viruses, such as the coronavirus. Your family appears to accept an inevitability to your deportation and want you home to look after your mother and father.
You have been served with a will say will section 254 migration notice, informing you, upon your release, you will be taken into immigration detention for deportation.
Mr Imrie, in written and oral submissions, relied on the following factors in mitigation of your penalty:
1.your early guilty plea
2.your remorse
3.your relative youth
4.your previous good character
5.you are very good prospects of rehabilitation
6.your respiratory condition resulting in additional anxiety and hardship in custody in the context of COVID-19
7.the risk of deportation which will jeopardise the opportunity for you to remain in Australia
8.the additional hardship of prison due to your isolation from family.
Prosecution submissions
Ms Cameron, who appeared for the prosecution, in helpful written and oral submissions, contended the cultivation set up was sophisticated and the quantity of cannabis plants being grown, which, by weight, was 4.76 times the commercial quantity, was substantial.
She submitted, because of the prevalence of this type of offending, general deterrence and denunciation are prominent sentencing considerations.
She conceded the role each of you could not be put any higher than a 'crop sitter'. She also conceded there is no evidence any of you were involved in the establishment of the cultivation set up or that you had, or were to, gain financially from the cannabis plants being grown.
As to the assessment of the gravity of your offending, she referred me to Nguyen v The Queen [2017] VSCA 286, where the Court of Appeal stated the court should have regard to '…tasks performed by the offender in the enterprise, the nature of his relationship with the principles or leaders of the enterprise, the degree of trust the responsibility reposed in the offender, the size, scope and sophistication of the enterprise, any expectation of the offender in respect of the rewards to be derived from the enterprise'.
She accepted:
·you are each relatively youthful offenders and of previous good character
·you are each entitled to the benefit of early guilty plea;
·your guilty plea is evidence of remorse and the impact of COVID-19 increases the utilitarian value of your plea
·you each have reasonable prospects of rehabilitation
·the impact of the COVID-19 is causing additional stress and concern for prisoners will, as it is for every member of the community
She also accepted each of you face the prospect the prospect of deportation but submitted, as none of you have ties to Australia, you had not demonstrated hardship which could be considered a mitigating factor.
As to your disposition, she submitted a term of imprisonment with a non-parole period is within range.
Analysis
The maximum penalty for the offence of cultivating a commercial quantity of cannabis is 25 years imprisonment. It is a Category 2 offence. Accordingly, under sub-s.(5)(2H), I must impose an immediate term of imprisonment other than a sentence of imprisonment imposed in addition to making a community correction order unless I am satisfied one of the stated exceptions applies. It was common ground that none of the exceptions applied.
By your guilty plea, each of you acknowledged your involvement in the cultivation of the cannabis plants growing at the house on 9 October 2019. The set-up was sophisticated and complex; and the crop was sizeable. The house had been converted to cannabis cultivation. The plants, which were grown hydroponically, were 4.76 times the commercial quantity by weight.
However, it was common ground, in the case of each of you, your offending was of very limited duration, a single day, and your involvement was no more than a crop sitter who was not involved in setting up the hydroponic cultivation and obtained no financial benefit from it.
In my view, given your personal circumstances as foreign nationals, who were relatively youthful, with no criminal record, studying and looking for work and isolated from family, you were vulnerable to exploitation by the principals who were responsible for the cannabis cultivation and expected to profit from it.
Notwithstanding the complexity of the growing set-up and the substantial weight of the plants being grown, applying the principles in Nguyen's case, I consider your individual culpability falls to the lower end for the type of offending.
I take into account COVID-19 related anxiety and prison restrictions will make custody harder for you.
While I take into account you, Mr Mataj, and you, Mr Marinaj, each have a history of a serious medical episode, on the material before me, you appear to have made good recoveries and imprisonment has not been made appreciably harder for you.
I consider your guilty pleas, particularly in your cases, Mr Mataj and Mr Marinaj, have very high utilitarian value, because, without them, there was little evidence of your commission of the crime. There was scant evidence against you, apart from your presence, when police arrived, and subsequent flight.
Mr Vashja, additionally you had keys to the house front door and side gate padlock and your car was parked in the driveway.
There was no evidence of any task that any of you had performed in connection with the cultivation or your relationship with the principals.
In R v Shane Doran [2005] VSCA 271 Buchanan J explained the effect of an offender providing the prosecution with the evidence necessary to convict him. At paragraph 14 His Honour said:
'In my view, the consequences ... are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions'.
I also take into account the added utilitarian value of your plea in circumstances where the administration of the courts has been disrupted by the public health crisis.
I am satisfied, in respect of each of you, it is your only episode of offending, you are remorseful and have done your best in prison to advance your rehabilitation and are very unlikely to reoffend.
The three of you have similar backgrounds, each born in Albania and taken by your families to Italy to escape poverty and lack of opportunities. In your case, Mr Mataj, your family made financial sacrifices to help send you to Australia. In your case, Mr Vashja, you left behind an impoverished childhood. I accept each of you came to Australia for education and work opportunities and to make a better life for yourselves.
In those circumstances, I accept the risk of deportation will make the burden of imprisonment more onerous for each of you.
Because of the prevalence of the crime you committed, general deterrence and denunciation are important sentencing factors.
I must impose a term of imprisonment upon each of you. However, I have moderated the term to take into account the gravity of your offending, as I have assessed it, and the mitigating factors I have identified.
While there may be some differences between the circumstances of your offending and the personal circumstances of each of you, no argument was made that I should not deal with you equally. I see no obvious basis to treat any of you differently.
By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation. Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of cultivating a commercial quantity of cannabis each of you is convicted and sentenced to 10 months' imprisonment.
I declare you have already served 274 days of your sentence by way of pre-sentence detention.
And I declare, but for your guilty plea, I would have sentenced each of you to 18 months' imprisonment.

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[2020] VCC 1020

9 July 2020