Director of Public Prosecutions v Mirukaj
[2025] VCC 1153
•13 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 22-01661
CR 22-01662
CR 22-01166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERGYS MIRUKAJ |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2025 | |
DATE OF SENTENCE: | 13 August 2025 | |
CASE MAY BE CITED AS: | DPP v Mirukaj | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1153 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Cultivation of narcotic plants – trafficking in a drug of dependence – attempt to possess a marketable quantity of border controlled drug reasonably suspected of having been unlawfully imported (cocaine) – Commonwealth offending – State offending plea of guilty – delay – no prior convictions otherwise good character – risk of deportation – onerous conditions in custody
Legislation Cited: Criminal Code 1995 (Cth); Crimes Act 1958 (Vic) Migration Act 1958 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Guden v The Queen (2010) 28 VR 288; Allouch v The Queen [2018] VSCA 244; Ong v The King [2023] VSCA 116; Akot v The Queen [2020] VSCA 55; R v Nguyen; R v Pham (2010) 205 A Crim R 106
Sentence: Sentence of imprisonment of 5 years and 8 months imprisonment with a non-parole period of 3 months and 5 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Tatas | Office of Public Prosecutions |
| For the Accused | Dr M. Gumbleton | Mr E. Andrianakis |
HER HONOUR:
1Mr Mirukaj, on 15 September 2024 you pleaded guilty on Indictment C2114784.3 to two charges of cultivation of narcotic plants and two charges of trafficking in a drug of dependence.
2Following a jury trial, on 14 October 2024, you were found guilty on Indictment C2114784.2A for one Commonwealth charge of attempt to possess a marketable quantity of border controlled drug reasonably suspected of having been unlawfully imported.
3On 16 October 2024, following a sentence indication, you pleaded guilty on Indictment C2114784.2B1 to one charge of knowingly deal with proceeds of crime.
Circumstances of the offending
4Ergys Mirukaj, you were born in August 1987. At the time of the offending you were 33 to 34 years old and you lived at 4/32 Royal Avenue, Springvale with your wife.
5When you arrived in Melbourne in August 2020, you were supported by Mr Ayoub Adam who facilitated and funded your accommodation and allowed you to use a black Jeep Cherokee wagon registered in his name.
6In November 2020, investigators from the Organised Crime Intelligence Unit (OCIU) commenced an investigation into the cultivation and trafficking of a drug of dependence. The targets of this investigation were yourself and Mr Adam. You were identified as a close associate of Mr Adam. He also resided in Springvale in close proximity to you, and you maintained regular daily contact via mobile phone and in person.
Cultivate Narcotic Plant – Cannabis L at 6 Karo Court, Doveton between 10 August 2020 and 7 September 2021
7A further co-offender for this charge of cultivate a narcotic plant is Salim Patel and he was born in October 1974. At the time of the offending, Mr Patel resided at a property he owned at 6 Karo Court, Doveton with his wife and 18-year-old son.
8Mr Mirukaj, you and Mr Adam attended this property to set up the cannabis crop and between 21 January 2021 and 31 August 2021, surveillance unit operatives observed you and Mr Adam attend at that address on multiple occasions.
9Over the period of the investigation the police utilised telephone intercepts. They intercepted at least 30 calls between you and Mr Adam discussing the cannabis crop at Doveton using code words and between 24 and 27 August 2021, there were further calls between you and Mr Adam in which you discussed the harvest of the crop.
10On 7 September 2021 at approximately 2.45 pm, police executed search warrants at 6 Karo Court, Doveton and a cannabis crop was located within the house. The cannabis was later examined and found to be Cannabis L with a total weight of 4.32 kilograms and; Cannabis L mixed with unidentified plant material with a total weight of 6.11 kilograms and the total weight of cannabis seized at that property was 10.43 kilograms.
Cultivate Narcotic Plant – Cannabis L at Unit 2/27A Royal Ave, Springvale between 15 January 2021 and 20 May 2021 22.
11A co-offender for this charge is Bill Argyropoulos and Mr Argyropoulos resided at 2/27A Royal Avenue, Springvale and that is across the road from where you were living.
12You together with Mr Adam and Mr Argyropoulos set up a cannabis crop at Mr Argyropoulos’ home. On 15 January 2021, you were observed to exit a vehicle in the driveway opposite 27 Royal Avenue, Springvale and carry three floor air vents and enter the vicinity of 2/27A Royal Avenue. You then picked up Mr Adam from his home and drove to the drive-through timber trade area at Bunnings in Springvale. You left Bunnings with adhesive, double-sided tape and approximately 12 pieces of pine having paid cash. You returned to 2/27A Royal Avenue, and several hours later you and Mr Adam left that address and entered your driveway.
13On 21 January, 2021, you parked outside 2/27A Royal Avenue and went inside. Around 20 minutes later, you and an unknown male left the address and drove to 6 Karo Court in Doveton, where you parked in the driveway.
14On 1 March 2021, you and Mr Adam were observed at 2/27A Royal Avenue and after leaving the premises, you walked to your address with Mr Adam. A short time later Mr Adam left your address and walked into 2/27A Royal Avenue and a vehicle with registration 1GH4DD was observed to leave the driveway of 2/27A Royal Avenue.
15You were in contact with Mr Argyropoulos on two occasions on 12 May 2021 and on 20 May 2021, police executed search warrants at 2/27A Royal Avenue. Located inside the premises was a hydroponic setup in the garage and there were six large mature cannabis plants, loose green vegetable matter inside the garage and the cannabis was further examined and had a total weight of 79 kilograms.
Traffick Cannabis L at Wodonga between 15 and 16 August 2021
16A co-offender for these charges is Ali Sadeghi-Iman and at the time he lived at 69 Sanctuary Lakes East Boulevard, Point Cook and he drove at white Mitsubishi Pajero wagon that was registered in his name.
17Together with Mr Adam and Mr Sadeghi-Iman, you agreed to transport cannabis concealed in an industrial air compressor across the Victorian border into New South Wales on 16 August 2021. You and Mr Adam organised the concealment.
18On 10 August, you spoke with Mr Adam about Mr Sadeghi-Iman and on 15 August you and Mr Adam discussed the size of air compressor you would need for a welder.
19On 16 August 2021, you, Mr Adam and Mr Sadeghi-Iman attended Sydney Tools in Moorabbin in a vehicle driven by Mr Adam. You purchased a ‘Chicago’ branded industrial air compressor and other items including a self-retracting utility knife and black Artline Plumbers Marker. The compressor was too big to fit in the car Mr Adam had driven to the store so the three of you left and returned in Mr Sadeghi-Iman’s vehicle and loaded the compressor aboard.
20On the same day, you and Mr Adam drove to Bunnings, Springvale, where you purchased an angle-grinder and the grinder was used to cut open the industrial air compressor to create the concealment used to discreetly transport the cannabis. Police intercepted calls between you and Mr Adam where you discussed the transport of the cannabis by Mr Sadeghi-Iman.
21On 16 August 2021 at 6.39 pm, Mr Sadeghi-Iman left Sanctuary Lakes estate in Point Cook for New South Wales in a vehicle registered to him. At approximately 10.10 pm, Mr Sadeghi-Iman was intercepted by Wodonga Highway Patrol on the Hume Highway, Barnawartha at the Victoria and New South Wales border. Police conducted a search of the vehicle where they located a large ‘Chicago’ branded industrial air compressor in the rear of the vehicle and the storage area floor was observed to be sitting up. On inspection of the storage area floor, a large amount of cannabis in vacuum sealed bags was observed under a sheet that had been covered in a substance like Deep Heat to disguise the cannabis odour. There were 46 individual bags of Cannabis L with a total weight of 20.57 kilograms found in the vehicle.
22The industrial air compressor was searched and found to contain Cannabis L. It appeared to have been specifically modified for the sole purpose of concealing the illicit drug to avoid detection by law enforcement during the transportation across the border. The cannabis was subsequently examined and confirmed to be 54 individual bags of Cannabis L with a total weight of 25.32 kilograms.
23The combined weight of the Cannabis L seized from the vehicle was 45.89 kilograms of high-quality hydroponic cannabis and you trafficked the cannabis by having it in your possession for sale and transporting it to New South Wales in order to sell it. The prosecution accept that you did not intend to traffick in excess of 25 kilograms.
Traffick a drug of dependence – Cannabis L at Kennards Self Storage, Springvale on 7 September 2021
24The next charge is a traffick drug of dependence, this is part of a rolled‑up charge dealing with Cannabis L that was located at Kennards Self Storage and your home address.
25On 30 August 2021, Mr Adam attended Kennards Self-Storage at 881 Princess Highway, Springvale and entered into a rental agreement for Unit B003 for a period of one month. He also purchased other items.
26On 2 September 2021 at approximately 9.35 am, you and Mr Adam dropped some items off at Kennards. You were wheeling a dark coloured suitcase. The suitcase contained 36 plastic bags of dried Cannabis L and the two of you returned to Kennards later that day and unloaded some more items.
27The next day on 3 September 2021 at 1.16 pm, you told Mr Adam, ‘we need to see those babies’, ‘babies’ being a reference to cannabis and Mr Adam drove you to Kennards. You attended again on 4 and 5 September 2021.
28At the time of your arrest, you had possession of a set of keys and a fob to the Kennards unit and on 7 September 2021, police executed search warrants on the unit B003. Among other items, the 36 vacuum sealed plastic bags containing Cannabis L were seized.
29The cannabis was later examined was found to be Cannabis L. Pooled from 36 plastic bags. The total weight was 15.52 kilograms and you trafficked the cannabis by having it in your possession for sale. And as I said, that is part of a rolled‑up charge.
Traffick a drug of dependence – Cannabis L at 4/32 Royal Ave on
7 September 2021
30The other part of the charge occurred on 7 September 2021. You were arrested and police executed search warrants on the vehicle which was the black Jeep Grand Cherokee and your home address at 4/32 Royal Avenue, Springvale.
31Police located the following: one box of ‘Coco Charcoal’ containing a bag of green vegetable matter with a total weight of Cannabis L of 106.7 grams; one plastic bag containing green vegetable matter inside a cardboard box with a total weight of Cannabis L mixed with unidentified plant material of 378.2 grams.
32The combined traffickable quantity of Cannabis L was 484.9 grams and you trafficked the cannabis by having it in your possession for sale.
Charge 1 – Knowingly deal with proceeds of crime – $143,020 – 4/32 Royal Ave on 7 September 2021
33During the execution of the search warrants , police also seized a large quantity of cash in a cupboard on a top shelf totalling $130,050; there was $370 cash inside a Louis Vuitton wallet found in a cupboard and a large quantity of cash beneath black pants on the bed of one of the bedrooms totalling $10,000; and a quantity of cash beneath sheets in cupboard totalling $2,600.
34Mr Mirukaj, you dealt with the proceeds of crime by being in possession of the cash as you had control over the money and intended to exercise control and the combined total amount of the cash was $143,020.86 and the cash was proceeds of your cannabis business.
Attempt to Possess a Border Controlled Substance Reasonably Suspected of having been Unlawfully Imported in a Marketable quantity – (Cocaine) at Springvale between 27 August 2021 and 2 September 2021
35You pleaded not guilty to the Commonwealth charge of attempt to possess a border controlled substance reasonably suspected of having been unlawfully imported in a marketable quantity. In determining the circumstances of your offending for the purposes of sentencing, I have had regard to the evidence that was led at trial and consistent with the jury verdict, I find that the jury must have acted on the following factual basis.
36On 27 August 2021 at approximately 9.30 am, import/export company DHL received a call from Creshnik Canko posing as ‘Franko Azzaro’ in relation to a package shipped from Belgium to Lumas Hospitality Supplies, addressed to Franko Azzaro at 1663 Centre Road, Springvale. Mr Canko requested that the package be redirected to 2/27A Royal Avenue, Springvale and that is the residence of Bill Argyropoulos, who was a person that you knew.
37You were watching out for the delivery from your driveway and filmed the DH van pull into the driveway of 2/27A. The delivery driver was told by the resident at that address that there was no person by the name of Franko Azzaro who lived there.
38After trying another address with no success, the driver departed. Having observed the failed deliveries, you decided to follow the DHL van in the black Jeep. The DHL van stopped a few streets away and you were observed on CCTV pulling over, exiting your vehicle. You approached the DHL driver claiming you were picking up the package for ‘Frank’. The DHL driver refused to hand over the package. You then went back to your vehicle and drove away.
39On 27 August 2021 at 12.16 pm, DHL received a call from Mr Canko calling himself ‘Franko’ stating he missed the delivery and could see the delivery driver. The operator confirmed the redirection address as 2/27 Royal Avenue, Springvale and ‘Franko’ confirmed the address is correct and provided a mobile number ending in 2342, which was utilised by Mr Canko. Shortly after, you and Mr Adam discussed the missed DHL delivery on the phone and expressed concern about the missed delivery.
40The DHL operator called the DHL delivery driver who advised that he would be returning the shipment back to base and the delivery driver stated he took the shipment to 2/27A Royal Avenue but was told by the resident that no such person by that name lived at the address. The DHL driver made a note of your vehicle registration and returned the package to DHL base where he reported the suspicious behaviour to management.
41Later that day, Mr Canko called DHL as ‘Franko’ and stated that he was upset that the DHL driver did not leave his package at the door and told the operator he was at Royal Avenue now. The operator advised ‘Franko’ the driver will be returning to the Mount Waverley Depot and ‘Franko’ said ‘I go to the depot, I don’t care. I need this thing today’. At approximately 1.20 pm, you drove to the DHL Express Depot, Mount Waverley and remained in your vehicle for about four minutes.
42At 1.57 pm, there as a call between you and Mr Adam and you told him you were not happy and would let him know why when you saw him. There was a subsequent call and you told Mr Adam, ‘we need to go to that one and have a look’ and you were very upset that ‘he’, he being Mr Canko, was not there on time and now you had to go through all ‘this bullshit’. You told Mr Adam, ‘we called them, and they need to reschedule another delivery'.
43The next day on 28 August 2021, Australian Border Force seized the returned package. Subsequently, the package was examined and found to contain approximately 3 kilograms of cocaine. The cocaine was concealed inside a silver and black Buffalo portable griller.
44On 31 August 2021 at 9.08 am, there was a call between you and Mr Adam. You said that nothing had changed and you would wait. At 10.08 there was a further call between you in which you said 'the thing is here' and ‘when they put it in the car, it shows in the site'. You then said, ‘Let’s go where the … place is … find somebody who comes out from there and give money'. Mr Adam replied, ‘Don’t come near it. Stay away'.
45On 31 August 2021 at 10.51 am, surveillance unit operatives observed a vehicle driven by Mr Adam with you as the front passenger drive past DHL Express service point at Mount Waverley. There were a number of calls between yourself and Mr Adam. At 12.26 pm, you told him ‘Nick called them’ and 'At this point, they say, we don't have any update or any news when it’s gonna be delivered. We’re gonna call you this afternoon'. At 12.44 pm, Mr Adam told you he was 'passing that place' and that ‘the DHL just left'. He asked you if you remembered the number plates for the delivery van. Mr Adam then approached a DHL driver and can be heard talking to him about missing a delivery. The driver was unable to assist. You then said, 'One small fuck up, brother, fucks up everything'. At 2.35 pm, you told Mr Adam you were relaxing and that ‘Nick’ was there too and that evening you asked him, being Mr Adam, to assist you with printing something from an email related to the DHL package and told him that the sellers were angry because there is a lot of money involved and Mr Adam said, 'We'll print it tomorrow'.
46On 1 September 2021, an email was sent to DHL from a person purporting to be ‘Franko’ enquiring about the DHL package and provided the delivery tracking number. Enquiries conducted on the email address used revealed a Google account in the name of Franko Azzarr.
47A subsequent analysis of the phone ending in 3342, which was utilised by you, revealed images relating to the DHL package which were tendered at your trial. These images included a shipment receipt from Certo BVBA of Belgium located with the DHL package seized on 28 August 2021; a DHL Track Express Tracking page with a tracking number 27 August 2021; an email from Ryan Wilkinson from DHL addressed to Franko dated 2 September; a commercial invoice from Robert Wooths of Certo BVBA Belgium to Franko Azzaro of Lumas Hospitality Supplies located with the DHL package seized on 21 August 2021; and the redirection details with new delivery address to 2/27A Royal Avenue, Springvale and the new delivery date on 2 September 2021; and a screenshot of the contact details of Antonio Milo.
48On 2 September 2021 at approximately 8.00 am, you contacted DHL again enquiring about the package. There were further calls between yourself and Mr Adam. At 1.01 pm, you told him that you cannot sleep worrying that the package is lost and Mr Adam said that if the package was lost 'we are getting cooked and dragged into something'.
49At 2.13 pm, you told Mr Adam you just received the email and 'it’s bad, ‘it's red’. Mr Mirukaj, you said, 'I will show you when you come brother'. At 9.52 pm, you told Mr Adam, ‘these people, they blame me, I wasn’t correct on time’ and ‘"they" now want me to try everything because "they" do not care and they have nothing else to lose'. You said you told ‘them’ if you cannot get it, the sender will get it back. Mr Adam told you not to talk about it on the phone and to not think too much about it.
50The evidence of Detective Sergeant Randall was uncontested at trial and the jury were given an uncontested expert evidence direction. It is reasonable that they would have accepted this evidence and the direction they were given. Detective Sergeant Randall's evidence included his opinion that given the value of this importation and the way it was concealed with rivets and lead lining, organised crime was involved. Organised crime generally operates in a hierarchy which is usually more haphazard than legitimate business, those at the top of the hierarchy insulate themselves against risk and those who are at the greatest risk of detection are those close to the delivery point. People working with organised crime may not know anybody else in the syndicate for risk mitigation purposes and there were several reasons why knowledge would be withheld from those toward the bottom of the hierarchy and that included that a courier might refuse to be involved as the risk was too great, they might ask for more money, they might steal the drugs and to prevent information being provided to authorities if a courier were arrested.
51Detective Sergeant Randall also gave evidence that other illegal commodities or crime enabling commodities that are commonly smuggled include firearms, other weaponry, body armour, false identifications and illegal imports could include jewellery, diamonds, designer watches, highend electronics, artwork and counterfeit goods.
52The white powder located inside the DHL package contained in three 1 kilogram individually wrapped blocks was examined and was found to be a combined quantity of cocaine weighing 2,999.8 grams and the total combined pure quantity of cocaine was 1,659.91 grams. A marketable quantity of cocaine under the Criminal Code 1995 (Cth) is 2 grams.
Factual findings
53Ms Tatas for the prosecution submitted that the guilty verdict demonstrates that the jury found beyond reasonable doubt that you intended to possess an illegal white powder substance.
54As I understand her argument, Ms Tatas reasoned because the question trail provided to the jury asked them to consider 'has the prosecution proven beyond reasonable doubt that Mr Mirukaj intended to possess the white powder substance that was concealed inside the package' and because the defence told the jury that Mr Mirukaj knew what was contained in the package was illegal, the jury must have reasoned beyond reasonable doubt that Mr Mirukaj intended to possess an illegal white powder substance.
55Ms Tatas submitted that you, Mr Mirukaj, should be sentenced consistent with the jury verdict, it being that you knew the package contained a white powder substance that could only be a border controlled drug.
56Your counsel, Dr Gumbleton submitted that the jury convicted you on the basis that you knew the package you attempted to possess contained a substance but were reckless as to the substance being a border controlled drug, that is there was a substantial risk the substance was a border controlled drug and you were unjustified in taking that risk in the circumstances known to you.
57Dr Gumbleton submitted that it is not open to conclude that you knew the package contained cocaine or the precise quantity of the drug. Further, Dr Gumbleton submitted that in reaching its conclusion beyond reasonable doubt, the jury did not have to reject the evidence that you were recruited by a criminal syndicate to perform a limited role of overseeing the delivery of the package to the address on behalf of Creshnik Canko. Whilst your role changed when Mr Canko could not get to the address in time, you retained a subservient role and operated at the direction of others that sat above you in the criminal syndicate.
58At your trial, Detective Sergeant Keith Randall gave evidence as to the hierarchical structure of such syndicates and Dr Gumbleton submitted this evidence supported a conclusion that you occupied the lower end of the hierarchical structure as someone who was tasked to oversee the delivery. It was only when Mr Canko could not attend that you were held responsible for not securing the package. In Dr Gumbleton’s submission, the steps you subsequently took were naïve, unplanned and unsophisticated. You were at the bottom end of the hierarchy, doing the bidding of those that distanced themselves from the greatest risk and there was no evidence that you knew the package contained cocaine or that you intended to access or deal with the contents after the delivery had occurred.
Finding
59I have considered the arguments of counsel on plea and also at trial. I have also considered how the jury were directed about the elements separate from the question trail. The question trail was provided as an aid for the jury and drafted to include the term ‘the powder substance’ (not the ‘white powder substance’). The questions were posed in form as there was a powder substance that had been concealed in the package. If the jury answered yes to question one, and were therefore satisfied of element one, they still needed to go on to consider the second question in relation to element three. Elements one and three were in issue in the trial and a copy of the question trail is annexed to these reasons.
60It was clear through the question asked by the jury that they were grappling with the different concepts raised by these two elements. They were directed in response to their question as to the pathways of reasoning they might employ and circumstantial evidence.A copy of this direction which includes the questions asked by the jury is also annexed to these reasons.
61The defence case was that you knew what was in the package was illegal but in light of the evidence from Detective Sergeant Randall, that any number of items can be illegally smuggled or imported and the jury could not be satisfied to the requisite degree that you knew or were reckless as to the substance being a border controlled drug. In my view in this context, the jury convicted you on the basis you knew the package you attempted to possess contained an illegal substance but were reckless as to the substance being a border controlled drug. That is the jury found that there was a substantial risk that the substance within the package was a border controlled drug and you were unjustified in taking that risk in the circumstances known to you. This is consistent with the evidence at trial, the arguments of the parties, the expert evidence and the directions provided to the jury and, accordingly, I intend to sentence you on this factual basis.
Gravity of the offending
62Attempting to possess a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported is a very serious offence as indicated by the maximum penalty of 25 years’ imprisonment.. The charges of knowingly deal with proceeds of crime, cultivate a narcotic plant and trafficking are all punishable by a maximum penalty of 15 years’ imprisonment and this demonstrates the seriousness with which the community and the Parliament view such conduct.
63The Court of Appeal has consistently stated that the sentencing regime for drug trafficking offences is quantity based and while the quantity trafficked is not determinative of the court's assessment of the objective gravity of the offence, it will always be of importance. All things being equal, the greater the quantity trafficked, cultivated, imported or attempted to be possessed, the more serious the offence. However, there are other important indicators of offence seriousness, such as the role of the offender, the duration of the offending and the motivation behind the offending.
64In relation to the charge of attempting to possess a marketable quantity of a border controlled substance, you attempted to possess 1,659.9 grams of pure cocaine, a commercial quantity being 2 kilograms and a marketable quantity being 2 grams. The wholesale value of the cocaine was between 660,000 and $975,000. I am unable to find that you had actual knowledge as to the amount of cocaine or the identity of the substance in the package but it is clear by your actions and conversations that you knew what was contained in the package was valuable.
65Your offending was clearly organised and involved a syndicate and I accept the unchallenged evidence of Detective Sergeant Randall in this regard. Further, I accept given the way the evidence unfolded at trial, that you Mr Mirukaj, were well towards the lower end of such a hierarchy or syndicate. You took active steps to recover the package. However, I agree with the categorisation by your counsel, that such actions as you took were naïve, unplanned and unsophisticated.
66As to the state offending, you pleaded guilty to two charges of cultivate Cannabis L and one of these involves an amount of 10 kilograms over 13 months and the other 79 kilograms over four months and both instances of cultivation involved sophisticated hydroponic set ups.
67Further, you have pleaded guilty to two charges of trafficking. The first of these relates to the possession for sale and attempt to transport cannabis interstate and there was a degree of sophistication involved in this offending. You and your co‑offenders purchased an air compressor that was then modified to conceal the shipment and you fall to be sentenced for intending to traffick no more than 25 kilograms of cannabis on this occasion.
68The second charge of trafficking is a rolled-up charge that is put on the basis that you possessed cannabis for sale and this relates to the 15 kilograms that was located at the Kennards storage unit and the 485 grams that was located at your home when you were arrested on 7 September 2021.
69In relation to the proceeds of crime charge, you knowingly possessed a significant amount of cash, a total of $143,000 and it is conceded by your plea and by your counsel that this amount was the proceeds derived from the cultivation and trafficking of cannabis. It is serious offending that warrants a term of imprisonment and I have previously indicated that such a term will be concurrent with other sentences imposed upon you.
70You were involved in several drug related enterprises including the cultivation and trafficking of cannabis and an attempt to possess cocaine and your offending persisted over a period of around 13 months and involved significant amounts of money. When looked at globally, I conclude your offending was very serious.
Personal Background – Ergys Mirukaj
71Mr Mirukaj, you were born in Lezha, Albania in August 1987. You grew up in a village adjoining the city on a 3 to 4 acre allotment of land. Your family were largely self-sufficient, growing their own food and slaughtering their own meat. Your upbringing was strict and to a large degree you were raised in a paternalistic household with conservative and traditional values. You were, however very close to your parents.
72Your childhood experience was marked by the outbreak of civil unrest in Albania and you vividly remember the complete breakdown of law and order where you witnessed gun related violence and death linked to the proliferation of high‑powered firearms within the community.
73You witnessed several feud-fuelled shootings and on at least three occasions you witnessed the shooting of a bystander. In the aftermath of witnessing these shootings which included gun deaths, you began experiencing chronic nightmares and psychological and physiological distress.
74Despite the civil unrest, your family was not drawn into feuds and on at least one occasion you and other family members had to lie on the floor to avoid errant gunfire which caused damage to the windows. Your family carried on but fear was a part of your daily experience.
75You completed a Year 12 education and participated in competitive wrestling where you excelled. You went to university and completed a Master of Science in 2009. Your skill at wrestling led you to build a career as an athlete which allowed you to provide some financial support to your family. Your career also allowed you to travel and on one such occasion you travelled to Australia in 2014 for a tournament. You met your wife Rebekah the same year. You married in 2015 and you have remained in Australia and lived with Rebekah’s family and worked land that was owned by her parents in South Australia. You grew tomatoes and zucchinis which proved commercially viable.
76In August 2020, you decided to relocate to Melbourne with a view to setting up a café or restaurant business. You arrived in Melbourne ahead of your wife but found yourself isolated due to the lockdowns during the pandemic.
77This was an extremely difficult time. You became associated with negative peers and began using cocaine around November 2020 and the drug had a euphoric effect on you and helped boost your confidence. You developed a dependency on cocaine between November and December 2020 and your use escalated to 1 to 5 grams per day. You paid for the drugs with savings from farming, including money you were planning to spend on your business venture. In a psychological report tendered upon your plea, Mr Luke Armstrong opined that you likely developed a stimulant use disorder.
78You briefly returned to South Australia at the end of 2020. Your wife Rebekah learnt of your drug use in March 2021, leading to a crisis in your relationship. Despite Rebekah’s disapproval, you continued to abuse the drug on a daily basis. When you began to experience withdrawal, specifically hypersomnia and fatigue, you struggled to find motivation to work. To avoid withdrawal symptoms, you increased your drug use. When intoxicated, it was not uncommon for you to experience sleep deprivation for days at a time and your drug use continued up to your arrest.
79Rebekah lived between Adelaide and Melbourne and whilst you remained in Melbourne and attempted to get a foothold in hospitality, you kept your offending secret from her.
80Your offending was revealed when police executed a search warrant at your home and you were arrested in September 2021. At the time, Rebekah was pregnant with your first child. She suffered a miscarriage following your arrest, which you did not discover until you were released on bail. You spent 165 days on remand, which was your first time in custody. Your experience in remand was difficult. You endured COVID 24-hour lockdowns and quarantine and you adjusted to prison life by returning to exercise and assisted other prisoners to engage in physical activity.
81When you were released on bail in March 2022, you made amends with Rebekah and you and your wife have a strong relationship. You connected with the local Albanian community through sport and your faith and you volunteered your time and offered your financial support. You successfully assisted in the renovation and reopening of a restaurant and you denied any further drug use following your arrest.
82The pressure of the pending court proceedings and associated risks of being returned to prison and deported have weighed heavily upon you and Mr Armstrong concluded that you have a moderate major depressive illness overlapping with an anxiety disorder. At the time of Mr Armstrong’s assessment of you, for several months you had experienced insomnia, depressed mood, a significant reduction of interest in activities, weight gain and you struggle to problem solve and concentrate.
Matters is mitigation
No prior convictions and good character
83You are now 37 years old. You have been in Australia for over 10 years and have no prior convictions in this country. Further documentation was tendered on your plea that confirms you have no prior conviction in your home country of Albania. Your lack of prior criminal history is an important mitigatory factor I take into account in your favour.
84Not only is there an absence of past criminality, but you are a person of positive good character. Numerous references were tendered on your behalf and they speak as one to your good character. In particular, the character reference of Arjan Konomi reveals the high esteem you were held in whilst growing up in Albania as a professional athlete. You are otherwise a man from humble beginnings in rural Albania. You have completed both secondary and tertiary education and have excelled in wrestling at the elite level. You moved to Australia and have married and worked with your wife's family and I accept that prior to this offending you were a person of good character.
Pleas of guilty – to 5 of the 6 charges
85You have pleaded guilty to five of the six charges for which you fall to be sentenced and although your plea of guilty could not be categorised as an early plea, I accept that you were initially presented with a single indictment containing 20 charges. After considerable negotiations, a settlement was reached which resulted in several charges being withdrawn and your plea of guilty to others. Two matters were severed and became the subject of separate indictments, the Commonwealth charge proceeding as a trial and the possess proceeds of crime indictment proceeding to sentence indication and then plea. In all, I accept that your pleas of guilty have considerable utilitarian value. You have spared the court the time and cost of what would have been one or more complex, difficult and lengthy trials. Further, I accept that your pleas of guilty reflect your desire to facilitate the course of justice and are accompanied by contrition. Accordingly, I have allowed a significant discount in relation to the State offending.
Remorse
86Your counsel submitted that you have displayed evidence of remorse beyond your pleas of guilty and each of the character references tendered speak to your expressions of remorse. I accept that you are truly sorry for the decision you made to become involved in this offending, particularly in relation to the cannabis and the proceeds of crime. I accept that you realise the far-reaching impact this has had on not only your wife and family but also the broader community.
Risk of deportation
87You are a permanent resident of Australia but you are a non-citizen. Since 2014 you have built a life for yourself in Australia and have significant ties and connections here. You married Rebekah who is an Australian citizen and it is your wish to stay with her in Australia. You are well-entrenched in the local Albanian community and local church. Prior to your offending you had intended to apply for citizenship, but you did not.
88Given the seriousness of your offending, you now face the reality of a lengthy gaol term and a sentence of 12 months' imprisonment or more will trigger the mandatory cancellation provision of the Migration Act and place you at risk of deportation.[1] It is likely that you will be refused a visa and deported. There is an appeal process which would likely require expensive and lengthy litigation and would likely see you detained in immigration detention whilst such litigation proceeds.
[1]Migration Act 1958 (Cth) s 201.
89I accept that the uncertainty and real risk of deportation will make the time you serve in gaol more onerous. You face the prospect of deportation upon your eventual release. I also accept that deportation should it occur will constitute an additional punishment because it would destroy the opportunity for you to settle permanently in this country. The courts have recognised that the impact of deportation may vary dependent upon the offender's circumstances and I consider that in your case the impact will be great given your length of time here and the significant relationships and connections you have made within this country.
90I take into account the likely consequences and uncertainty created by the risk of deportation in your case. However, I note that such consequences cannot replace or stand as proxy for the imposition of an appropriate sentence reflecting the nature and gravity of the offending before the court.[2]
[2]Guden v The Queen (2010) 28 VR 288; Allouch v The Queen [2018] VSCA 244; Ong v The King [2023]
VSCA 116; Akot v The Queen [2020] VSCA 55 [34].
Remand – Covid-19 conditions
91You have been subjected to two periods of remand. The first of these was immediately after your arrest on 7 September 2021 and until this time you had never spent a night in detention or custody. In total, you spent 165 days on remand before being granted bail on 18 February 2022.
92For the first two months on remand you endured 24-hour lockdown due to the necessary protocols employed during the COVID-19 pandemic. For the entire period of remand, you did not receive personal visits, had limited if any access to programs and were subject to other restrictions. I accept that this would have added to what was a particularly difficult time in your life.
Performance on bail
93You were granted bail on 18 February 2022 and you remained on bail until your remand post-verdict, a period of two years and eight months. For this period, your liberty was conditional upon you reporting to police, adherence to a curfew and restrictions of travel. In her testimonial to the court, your wife Rebekah stated that 'while these conditions significantly impacted our lives and our ability to enjoy a "normal" relationship, Ergys complied fully with every requirement. This showed me his willingness to take responsibility and work toward a better future'.
94I have taken into account your performance on bail both as to the onerous regime with which you complied and also as it informs your prospects for rehabilitation.
Onerous conditions in gaol
95On 16 October 2024, you were again remanded in custody. You have now spent a further 301 days on remand. Although the conditions in custody have somewhat improved, I accept as submitted by your counsel that this period of remand has been onerous for you given that your wife Rebekah has only been able to visit you in person on four occasions.
96I received an affidavit and heard evidence this morning from Melissa Westin, who is the Deputy Commissioner, Custodial Operations Division of Corrections Victoria. Ms Westin detailed your conditions in custody and confirmed that you have had only four visits with your wife since October 2024 in a period of 10 months. Ms Westin gave evidence as to the reason for Ms Hanson’s ban from the prison. In light of the questioning from Dr Gumbleton and the responses from Ms Westin, it appears there may be a resolution of this issue in the near future.
97Ms Tatas for the prosecution submitted that the lack of contact with your wife should be given little weight. Ms Tatas pointed to other evidence from the affidavit that revealed you have had phone calls and visits with others and this she submitted showed that you were not isolated in custody.
98Without making any particular finding as to circumstances around the ban on Ms Hanson visiting you in prison or the processes employed by Corrections, I accept that this has created a unique burden and has caused you significant worry and added to your sense of isolation. In circumstances where you have faced the uncertainty of your future sentence and the uncertainty of whether you might remain in Australia, the added burden of not being able to see your wife is in my view significant. Your wife has been a major support for you and to be deprived of the ability to visit has meant your time on remand has been more difficult.
99Dr Gumbleton also submitted that once you are sentenced, your time in custody will be more burdensome for you than other prisoners because it will be your first term of imprisonment and you will not have access to your family in Albania. You will inevitably be preoccupied with the prospect of deportation or at the very least considerable litigation and potential immigration detention. I accept yours is an uncertain future and this will likely impact your mental health. As discussed at the plea hearing, I cannot take into account executive action such as the decision to be made by the Parole Board. However, I must sentence you as though you will serve every day of the head sentence I impose.
Delay
100Dr Gumbleton relied on the mitigatory effect of delay in your case. Your offending occurred almost four years ago and the court proceedings have remained unresolved for the majority of this time.
101Delay can be an important mitigatory factor that can be taken into account by a sentencing court in two ways. The first concerns unfairness to the offender in that a charge has been hanging over their head and has caused them anxiety and the second limb concerns whether during the period of delay the offender made progress towards rehabilitation and if prospects of ongoing rehabilitation are good.
102I accept that you have had to live with the worry and strain of this case and almost certain prospect of imprisonment that has been hanging over your head. I accept the evidence of Mr Armstong in this regard. The delay has allowed you to demonstrate that you have an ability to foster rehabilitation and you have committed yourself to reform through drug rehabilitation, you have worked whilst on bail, you have been of good behaviour in prison and you have produced clear drug screens and you are working whilst in custody.
Prospects of rehabilitation
103You are a man without a criminal history, you are educated, you have a strong work ethic and enjoy a stable marriage and significant community support. I accept that your offending was out of character and occurred at a time when you were isolated and facing an uncertain future. Having undertaken a risk assessment, Mr Armstrong opines that you are a low risk of re-offending and I agree with the submission of your counsel that your prospects for rehabilitation are excellent, whether in this country or in Albania.
Parity
104The principles that govern parity are well established. Equal justice requires that like offenders be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.
105Mr Adam and yourself do not fall to be sentenced for identical charges. The cannabis offending is slightly different but where there is overlap I consider your roles were similar if not the same. You pleaded not guilty to the cocaine indictment whereas Mr Adam has the benefit of a plea and as such he is entitled to a discount. You have the additional charge of possess proceeds of crime, however, I indicated that I would impose a wholly concurrent term of imprisonment for that offending at a sentence indication hearing on 16 October 2024. Mr Adam pleaded guilty to an additional charge of trafficking cocaine.
106Your counsel accepted on your behalf that you must receive a more severe sentence than Mr Adam. The principal difference between you is your trial and his plea in relation to the charge of attempt to possess a marketable quantity of cocaine.
107However, there are other differences that mitigate in your favour and these include: Mr Adam had a prior history albeit limited, Mr Adam is approximately 13 years older than you and Mr Adam is an Australian citizen and therefore does not face the uncertainty and isolation whilst serving sentence.
108I have weighed these factors into the sentencing exercise.
Sentencing principles
109The basic purpose for which a court may impose a sentence are just punishment, denunciation, deterrence both specific and general and protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors such as the objective seriousness of your offending, your role in the offending, your culpability, any mitigating factors and your personal circumstances.
110General deterrence and denunciation are prominent sentencing considerations in drug-related offences of this type and the law aims to address the damage caused by illicit drugs in various ways, particularly by targeting those responsible for their creation and distribution, who usually benefit financially at the expense of the health and wellbeing of individual drug users and communities.
111In relation to the Commonwealth charge, whilst I do not elevate your role in the offending by reference to the actual quantity of the drugs, I do consider it relevant to the issues of general deterrence. The risk you took by becoming involved in this enterprise was likely greater than you had contemplated and others should not be tempted to engage in such conduct which places themselves and the rest of the community at risk of harm from the distribution of illicit drugs.
112In my view, specific deterrence is of little importance to you in this sentencing exercise. It is apparent you have expressed regret and the character references provided that the consequences of engaging in this conduct have been powerfully brought home to you. You have had to grapple with the shock and disappointment of those closest to you and you will now be sentenced to significant terms of imprisonment in circumstances where you have until this offending, led a law‑abiding life.
113Your complete lack of prior history, your genuine remorse and the presence of numerous protective factors such as family and work, combine in your case to satisfy me your prospects of rehabilitation are excellent.
114Parity or disparity is also a factor to which I have had regard. Clearly, Mr Mirukaj you do not get a sentencing discount for the Commonwealth offending. However, I agree with the submission of your counsel that the evidence adduced at trial revealed that your role was a limited one and I accept that this c-would not have been revealed by a plea in mitigation.
115As to totality, your counsel submitted that the charge of attempt to possess a marketable quantity of cocaine is likely to form the base sentence. He conceded that it is appropriate there be a degree of cumulation upon the base sentence arising from the sentences to be imposed on the cannabis charges. As I have mentioned, I have already indicated the proceeds of crime charge will result in a concurrent sentence.
116I have carefully considered the application of the principle of totality and I must ensure that the total effective sentence is just and proportionate to the overall criminality involved. In determining the appropriate total effective sentence, I have taken into account that you are a first time offender, serving your first prison term and that you are a non-citizen and facing deportation. I am mindful that I must not impose a crushing sentence that provides no hope for the future.
117The principles of proportionality and parsimony are also important considerations. They require me to make sure the punishment imposed fit the crimes committed and that I do no more than is necessary to punish you for your role in the offending. I have taken these principles into consideration in fixing the sentences I will now impose.
118I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act where relevant in your case and I have had regard to the current sentencing practices for trafficking in a drug of dependence and cultivation of cannabis.[3] Further, I have had regard to current sentencing practice in relation to the federal offence as informed by the decision of R v Nguyen; R v Pham and have found the analysis of applicable principles to be useful in arriving at the ultimate disposition.[4]
[3] Sentencing Act 1991 (Vic).
[4] R v Nguyen; R v Pham (2010) 205 A Crim R 106.
119Further, I have considered the comparable cases supplied by each of the parties. It is difficult to gauge more than the sentencing landscape from these cases as each case obviously turns on its own facts but they have been useful as a measure of current sentencing practices for the offending before the court. Cases where longer terms of imprisonment were imposed usually involved the offender having some greater participation in the offending, greater quantities of drugs and usually involved them having relevant prior history. However, as I have said, each case must be dealt with according to the factors unique to it.
Disposition
120After consideration of what is the right penalty and balancing as best I can the nature and gravity of the circumstances of your offending, your moral culpability, with your previous good character and all the factors you have in your favour, I have formulated what I consider to be the appropriate sentence for you.
121You are convicted of each of the charges before the court and Mr Mirukaj you are sentenced as follows:
122Firstly, in relation to the charge of dealing with possess proceeds of crime, that is indictment C2114784.2B, I sentence you to 15 months' imprisonment.
123In relation to the other State charges under indictment C2114784.1, on Charge 1 cultivate cannabis at the Doveton property, I sentence you to 10 months' imprisonment.
124On Charge 2, cultivate cannabis at Royal Avenue, I sentence you to 12 months' imprisonment.
125On Charge 3, traffick cannabis at Wodonga, I sentence you to 15 months' imprisonment. That is the base sentence.
126On Charge 4, traffick cannabis, and that is the Kennards and the cannabis that you had at home, I sentence you to12 months' imprisonment.
127In relation to Charge 3 traffick in cannabis, the Wodonga offending, that is the base sentence. I make two months of Charge 1 cumulative, three months of Charge 2 cumulative and four months of Charge 4 cumulative on the base sentenceThat makes a State total effective sentence of 24 months' imprisonment.
128In relation to the State sentence, I propose to order a non‑parole period of 14 months.
129In relation to the Commonwealth offence on Indictment C2114784.2A, I intend to impose a sentence of four years and six months and a non‑parole period of two years and three months. The Commonwealth sentence is to commence at the expiration of the State non‑parole period. On my calculation, and my intention isto impose a global total effective sentence is five years and eight months as the head sentence and a non‑parole period of three years and five months.
130If the orders I have pronounced do not in law have that effect then I reserve liberty to both parties to apply for an order to amend the sentence to reflect my stated intention. Mr Mirukaj, I declare you have served 466 days by way of pre-sentence detention. This amount will be reckoned as time already served under this sentence and I direct that this declaration be noted in the records of the court. Pursuant to 6AAA of the Sentencing Act as it relates to the State offending, had you pleaded not guilty to those offences and been found guilty of those offences, Mr Mirukaj, I would have sentenced you to three years and six months with a non‑parole period of one year and 10 months.[5] So that gives you an indication of what the plea of guilty for the State offences has meant in terms of discount.
[5] Sentencing Act 1991 (Vic) 6AAA.
131In relation to the ancillary orders, I will not make those until I get confirmation that there is agreement between the parties and if there needs to be any matter litigated then just let my staff know and we will make arrangements for time for that to happen.
132We'll adjourn.
- - -
0
6
0