Director of Public Prosecutions v Plesa

[2018] VCC 1449

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00743

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARTUR PLESA

(ALSO KNOWN AS LEDIO LLESHAJ)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Plesa
MEDIUM NEUTRAL CITATION:	[2018] VCC 1449

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to one charge of cultivating a narcotic plant  - role as a worker only -  now 26 years of age – Came to Australia at 19 years of age -  granted a protection visa – offended  and deported – returned to Australia on fraudulent passport in name of Artur Plesa – parity with co-offender.

Sentence:  433 days – time served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno	OPP
For the Accused	Mr M. Gumbleton	Fayman Lawyers

HER HONOUR: 

1Artur Plesa, you are also known as Ledio Lleshaj, you have pleaded guilty to one charge of cultivating a narcotic plant between 8 and 20 June 2017.  You were involved in this offending with the co-accused, Miklos Virag whom I sentenced recently on 22 August.  The charge is put on the basis that you assisted in the cultivation as I shall describe shortly.

2In sentencing Mr Virag, I set out a summary of the offending and I do so again in relation to your involvement.  At the time of your arrest on 20 June 2017, the police had been for some months investigating alleged crop cultivations in areas including Glenroy and Campbellfield.  One investigation was by State police, another was by Australian Border Force police.

3On 8 June, Australian Border Force members commenced observations at 1590 Dandenong Road, Huntingdale.  That morning, Mr Virag was seen leaving a vehicle and entering the premises at that address.  Later he was seen travelling by car to a jewellery store in Sydney Road and you got into the car.  During the afternoon, you were both seen at Hydroponic Warehouse Supplies in Campbellfield and after a short time there, you went to 150 Somerset Road in Campbellfield and entered the driveway there.  The police watching the property were not able to see whether you actually entered the house.

4On 20 June, you asked your girlfriend, Esteri Curi, to rent a truck for you, telling her that you wanted to get rid of some rubbish.  You went together to Budget Car Rental Company where Ms Curi rented a white Isuzu truck registration ZPR 286, and you drove it to her address in Huntingdale where you met Mr Virag.  Later that day, police located the same truck parked in reverse in the driveway of 150 Somerset Road, Campbellfield, and saw you and Mr Virag and another man walking between the rear of the truck and the house.

5Half an hour later, you were all seen climbing into the truck which appeared to be about to leave the address but police intercepted it.  You and the other men were arrested and when you were searched, a number of items were found in your possession, and Mr Virag was found to have various items including keys to the house and a wallet containing ID and business cards for the Hydroware store.  The truck contained items consistent with the cultivation of cannabis including garbage bags, plants, and equipment.  Using the keys found in the possession of Mr Virag, the police gained access to the house and found a hydroponic setup of plants they believed to be cannabis. You were arrested and interviewed but you made no admissions.  You were remanded in custody where you have remained. 

6The following day, police went to 150 Somerset Road, Campbellfield and executed a search warrant there.  The white truck was seized and it contained large sheets of black plastic, large black pots and 21 plant stumps.  In the house the police located 22 mature plants and 59 cannabis seedlings.  These were all later examined by a forensic botanist who found the 22 plants weighed 71.85 kilograms, the 59 seedlings weighed 849.9 grams.  Twelve of the plant stumps from the truck were cannabis plants weighing 3.66 kilograms and the other nine plant stumps could not be identified.  The total weight of all the plants was 76.359 kilograms.

7It has been conceded by the prosecution that you did not finance the crop nor did you play any part in the management of it but that your role was as a worker who merely assisted, nor did you have any knowledge of the size of the crop. 

8Your personal circumstances are that you are aged 26 and you were 25 at the time of the offence.  You were born in Albania where your parents still live and you completed your education there.  You first came to Australia aged 19 on a tourist visa using an Italian passport and you applied for a protection visa on the basis of possible persecution should you return to Albania.  You were granted a bridging visa with a condition that you were not to work.  You were offered employment through the Albanian community to transport a suitcase from Perth to Melbourne and you were caught with money in the suitcase which was the proceeds of crime.  You were gaoled for 12 months to be released after five months on a Recognisance Release Order.

9You then went to Adelaide to await the outcome of your visa application and while there, you met your girlfriend who is also Albanian.  Your protection application was rejected and you were deported to Albania in March 2016.  You lived there with your parents for six months and then returned to Australia on a tourist visa using a fraudulent Hungarian passport.  You returned here in order to be with Esteri who had remained here and had moved to Melbourne.  She too was precluded from working.

10You knew Mr Virag and the other accused man from Albania and you agreed to help them by hiring the van.  You were not paid for this and there is no evidence to suggest that you entered the house.  At that time, Esteri was pregnant and she gave birth to her daughter while you were in custody.  She has visited you in prison with the baby, and when you are deported she will return to Albania to live with you there.

11The chief sentencing issues in this case are that of general deterrence and denunciation of the offending, and the principle of parity with the co-offender.  Cultivation of a narcotic plant is punishable by imprisonment for 15 years.  Clearly, it is a serious offence and the punishment imposed should be such as to try to deter others from offending in this way. 

12You have now spent 433 days in pre-sentence detention which is about 14 and a half months.  Your counsel, Mr Gumbleton, has submitted that that is sufficient time taking into account the mitigating factors that apply and most importantly, the question of parity with the penalty imposed on Mr Virag. 

13You offered to plead guilty at a very early stage to the charge on the indictment, indeed at the earliest possible time within three months of your arrest, despite having a viable defence open to you based on the lack of evidence of your involvement.  That offer was not accepted at the time.  For that early plea, you are entitled to a discount on your sentence for having facilitated the process of the criminal justice system and for having avoided a trial.  I also accepted that as an indication of remorse and for accepting responsibility for the offending.

14Mr Virag was charged with the more serious offence of cultivating a narcotic plant in a commercial quantity and with other offences as well, including possession of a handgun which was in the house, hence his moral culpability was more serious and his role was of a higher level than yours.  You are both men of a similar age and not dissimilar circumstances, but you have prior convictions which Mr Virag did not have.  As he did, you have also spent your time in custody in the expectation of being deported.  You were sentenced to a term of imprisonment by the Magistrates' Court in October 2013 for several offences including dealing in the proceeds of crime as I have already described and charges concerned with using false documents.  Having stated that, it is true that you are not a drug user.

15Those differences between you and Mr Virag could probably be said to balance out in a general sense and they do not prevent the conclusion that the period of time you have already served is the most appropriate sentence.  Mr Gumbleton's submission is that the sentence should be for less than that but I take the view that all things being considered, time served is appropriate. 

16Accordingly, you are sentenced to 433 days' imprisonment.  I make the declaration that the 433 days are to be reckoned as already served and I shall note that on the court record. 

17If you had pleaded not guilty, I would have sentenced you to two years and six months' imprisonment with a non-parole period of 20 months. 

18There are applications by the prosecution for disposal and for a sample of saliva to be obtained pursuant to s.464ZF of the Crimes Act.  Neither of those applications are opposed and I make those orders.  I must advise you that the police do have the power to use reasonable force to obtain the sample of saliva but I trust that will not be necessary.

19Mr Gumbleton, I have been alerted to the fact that I need to vacate the trial date of 4 February next year and the final directions hearing which is listed for 4 December, so I make those orders.

20MR GUMBLETON:  If it please the court.

21HER HONOUR:  Is there anything else that I have omitted?

22MS TUENO:  No, Your Honour.

23MR GUMBLETON:  No, Your Honour.

24HER HONOUR:  In that case, Mr Plesa may be taken.  I'm not sure what arrangements are now made for his transfer, if I can put it that way, Mr Gumbleton but no doubt that will be looked after downstairs.

25MR GUMBLETON:  We'll find out in due course.  If it please the court.

26HER HONOUR:  Thank you.  Thank you, Ms Tueno.

27MS TUENO:  Thank you.

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