Director of Public Prosecutions v Ramadan
[2025] VCC 367
•27 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01919
Indictment No. P11082863.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL RAMADAN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2025 and 13 February 2025 | |
DATE OF SENTENCE: | 27 March 2025 | |
CASE MAY BE CITED AS: | DPP v Ramadan | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 367 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trial – cultivation of a narcotic plant – commercial quantity – guilty verdict - theft – guilty plea –hydroponic system – electrical bypass - substance use disorder – remorse – relevant prior convictions – high moral culpability - successful completion of Court Integrated Services Program – significant efforts at rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Dang v The Queen [2022] VSCA 69; Le v The Queen [2021] VSCA 220; Symons v The Queen [2021] VSCA 276; Nguyen v The Queen [2021] VSCA 211; Nguyen v The Queen [2017] VSCA 286; Bui v The Queen [2015] VSCA 313; Pham v The Queen [2018] VSCA 308; Nguyen v The Queen [2019] VSCA 134; DPP v Nguyen [2024] VCC 1128; DPP v Price [2024] VCC 229; DPP v Nguyen [2023] VCC 2187; DPP v Latiff [2012] VCC 1827; DPP v Buchanan [2019] VCC 290; DPP v Alexiades [2019] VCC 1807; DPP v Burrniku [2019] VCC 138; DPP v Radovanovic [2022] VCC 666; DPP v Vu [2018] VCC 546; DPP v Devlin [2016] VCC 1814.
Sentence: 2 years and 4 months imprisonment, NPP 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric (Ms D. Tang for sentence). | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Dickenson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Daniel Ramadan, on 22 October 2024, following a 4-day trial, you were found guilty by a jury of a charge that on 26 April 2023, you cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.
2Although you pleaded not guilty to the commercial quantity cultivation, you did state, in front of the empanelled jury, that you were guilty of cultivation of cannabis.
3You also pleaded guilty to an offence that between 26 February 2023 and 26 April 2023, you stole a quantity of electricity belonging to Lumo Energy Australia Pty Ltd.
4The issue at trial was whether the prosecution could prove that you intended to cultivate cannabis in a commercial quantity. The verdict of guilty to that charge reflects the jury being satisfied beyond reasonable doubt that you had such an intention.
Circumstances of offending
5A Statement of Agreed Facts was read to the jury. The jury also heard evidence from the forensic botanist Emily Sowter, and the informant, Detective Luke Swift. Your recorded interview with police was also played to the jury.
6The circumstances of your offending, I find, are as follows: On 26 April 2023, at about 7.17am, police attended at the factory warehouse you rented at 20 James Court, Tottenham. You lived at those premises. Police knocked on the front entry door, which you opened. You allowed police to enter. Upon entry, police noticed a strong smell of cannabis. A search of the premises was conducted and a hydroponic crop set-up was located in several areas of the factory. Cannabis plants were found in a shipping container on the ground floor; in the downstairs bathroom laundry area; in a room underneath the staircase; and in a large upstairs room. An illegal electrical bypass was also found.
7Police located and seized 38 lights, 38 transformers, 5 charcoal exhaust fans, 5 pedestal fans, 5 water pumps, an electrical bypass and a timer switch. A photobook of pictures of the hydroponic set up and cannabis plants was tendered at the trial and marked Exhibit P1.
8In total,197 cannabis plants were located by police. The plants had a combined weight of 65.3 kilograms. The plants were of various heights, sizes, and ages.
9Ms Salter gave evidence at trial regarding the plants, the various growth media in which the plants were growing and, because the plants were growing indoors, of the need for appropriate nutrients, water and artificial lighting.
10It was estimated that the total electricity stolen over the offending period was 21,848 kWh. According to the prosecution, the value of the electricity stolen is calculated at $5,337.68.
11Following your arrest, you were interviewed by police and you made a number of admissions to having set up the hydroponic system and to cultivating the cannabis.
12You told police that the plants were yours, but you were not sure how many plants were being cultivated. In relation to the theft of the electricity, you said it was pretty easy for you to hook up the wires as you were in the 'building game'. You said you did all the wiring.
13You said you had been cultivating the plants for a couple of months, and you were intending to sell the plants but had not as yet sold any as the plants were not ready for sale. You also told police that you were solely responsible for the cultivation and had purchased the hydroponic equipment online for less than $5,000. You told police that you had never before cultivated cannabis.
14Regarding your own use of cannabis, you said you sometimes smoked it. You told police that you cultivated the cannabis for 'survival', in that you needed money. Your income from building renovations varied. You worked, you said, 'pretty much every day' and what you earned depended on 'how much the job’s paying'.
15With regard to the theft of electricity, you stated, in essence, that without stealing the electricity, you would not be able to cultivate the cannabis because the electricity bill would be high and would arouse suspicion.
Background and personal circumstances
16You were born in Melbourne in August 1988. You are now 36 years of age. You are the oldest of six children. Your siblings' ages range from 34 to 18 years.
17Your father worked in the building industry. He is now retired. Your mother lives in North Melbourne and is assisted by carers.
18Your parents separated when you were eight years of age, although they reunited briefly some 18 years ago. I was informed that your mother was diagnosed with bipolar disorder and has also struggled with substance addiction.
19Your parents separated during a particularly difficult time. Your father faced financial hardship, including the loss of his business, while trying to help your mother with her issues and also caring for the family.
20Following the separation of your parents, you, your father and your then siblings went to live with your paternal grandparents at their home in Preston. You report a good relationship with your father and all your siblings.
21You completed Year 9 at Reservoir District Secondary College. Although you attended school on a regular basis, you were suspended a number of times for smoking and fighting. Your first job was as a builder's labourer, however, due to your use of drugs, you had difficulty maintaining stable employment. You have worked mostly in labouring roles. For approximately the last 16 months you have held a full-time position as a gardener and landscaper.
22You have two children of your own through your relationship with your partner, Jacinta. They are aged 17 and 15. You and Jacinta had separated but in more recent times you have re-kindled your relationship.
Reports
23You were assessed by Gina Cidoni, psychologist, on 21 January 2025. Her report dated 26 January 2025 was tendered on your behalf.
24You told Ms Cidoni that your mother was a good mother during your early childhood, although her illness created instability within the family.
25Ms Cidoni also interviewed your father. He described to her the challenges he faced in caring for her, particularly as her condition deteriorated through her use of methylamphetamine. Her deteriorating mental state, he reported, led to a number of admissions to psychiatric wards.
26You reported to Ms Cidoni that your mother leaving the family was a significant traumatic event in your life, as was the death of your paternal grandmother some 10 years ago. Your paternal grandmother was a significant figure in your life following the separation of your parents.
27You have a long history of substance abuse. You commenced using cannabis at the age of 16. You started using methylamphetamine at the age of 25. Your use of methylamphetamine became a daily habit, although there were some periods of abstinence. You report having last used methylamphetamine just before you were remanded in custody on the current charges.
28You also report that you have abstained from all illicit substance use since being bailed on 28 September 2023. You successfully completed the Court Integrated Services Program ('CISP') during your current period of bail. You report your ongoing work with psychologist, Chau Hai Nguyen, as a key factor in your recovery.
29Ms Cidoni diagnosed a substance use disorder, in sustained remission. She considers that at the time of the offending your actions were significantly influenced by your heavy methylamphetamine use which, in her opinion, impaired your judgment, heightened impulsivity and reduced your ability to consider the consequences of your behaviour. She also considered that your history of emotional instability, financial instability, exposure to unhelpful peer influences, and the absence of consistent social support, created a context in which your ability to exercise sound judgment was compromised. These vulnerabilities, she said, stem from your adverse childhood experiences, including your mother's illness, methylamphetamine use, and eventual abandonment. Ms Cidoni also considers that your mother's substance use and instability likely normalised maladaptive behaviours, including substance use, during your formative years.
30Ms Cidoni states that the risk of you re-offending is low, and considers your abstinence from drugs, participation in CISP, and consistent engagement with your treating psychologist are protective factors. Your reconnection with your partner and two children, she said, has also created a meaningful family bond and reinforced your focus on stability and responsibility. Ms Cidoni considers your prospects for rehabilitation are positive. However, ongoing therapy is recommended.
31A report from Mr Nguyen, undated and headed 'Summary Progress Report', was also tendered on your behalf.
32Mr Nguyen stated he has been working with you since 1 November 2023 and that you have attended 16 sessions as at the time he prepared his report. The sixteenth session was on 21 January 2025.
33You told Mr Nguyen that the main reason you started cultivating cannabis was due to your curiosity, combined with you being 'bored'. You described to Mr Nguyen that at the time of your cultivation your functioning was heavily impaired due to your substance use. The reasons you gave Mr Nguyen for the cultivation appear to be at odds with what you told police, namely that you intended to sell the cannabis and make some money. It also appears to be inconsistent with your criminal history, which includes a conviction in 2016 for cultivation of cannabis.
34Mr Nguyen was of the opinion that currently there are no significant 'perpetuating factors' as you have successfully removed yourself from social networks, disconnected from the drug culture, and that you have been successfully abstinent from drug use for approximately the last 18 months. The stress and anxiety of ongoing legal proceedings related to the current charges, he stated, is the only perpetuating factor. I assume that by 'perpetuating factor', Mr Nguyen was referring to risk factors.
35Mr Nguyen considers you have protective factors in the form of support of your family, stable employment, psychological therapy, removal from negative social influences, and engaging in factors that interest you, such as table tennis.
36Mr Nguyen also considers that you have insight into the consequences of your actions upon others and that this also is a protective factor. Mr Nguyen administered a number of psychological tests, including the Executive Skills Questionnaire – Revised. He explored the possibility that you may have difficulties managing your life and abiding by the law. He considers that your test scores suggest that you will have no or low difficulty with your executive skills and that you will have no difficulty maintaining normal routines. Mr Nguyen states this result supports his observation that you have been able to maintain normal routines for the last 15 months away from drug use and criminal behaviours.
37A series of urine drug screens was also tendered on your behalf. There are some 13 in total, ranging from 29 October 2024 to 5 February 2025. They are all negative for the detection of illicit substances.
38A series of five CISP progress reports were tendered. You entered the program in approximately September 2023. The final report is dated 20 February 2024. I shall refer only to the final progress report.
39The report's author notes that you attended a total of 11 case management appointments with CISP. You also successfully completed an episode of standard counselling with the Australian Community Support Organisation. This involved four appointments with a counsellor focusing on your illicit drug use. You reported abstinence of all licit and illicit substances while in the community, taking pride in your progress. You also reported a positive attitude towards your counselling with Mr Nguyen and stated you were highly motivated to continue your counselling sessions, even after completion of the CISP. You told your case worker that you have engaged in employment and that has provided you with routine and structure in your life. Your engagement with the program overall, is reported as positive. A recommendation of an early finalisation and exit from the program was made, reflecting your low needs, current services linkage, and successful completion.
Character references
40I have also received character references from your brother, Andreas Ramadan; your partner, Jacinta Alessandrino; your father, Paul Sali; and your employer, Peter Manolidis.
41Your brother writes that you are currently living with him. He noted first-hand the changes you have made in your life and your commitment to a positive lifestyle.
42Jacinta Alessandrino speaks of your embarrassment and regret regarding the matters before the Court. She states you have shown genuine remorse for your conduct. She also writes that your outlook on life has significantly improved and that you have made significant efforts to be a positive father to your children. She writes that your commitment to self-improvement has played a significant role in the rekindling of your relationship with her.
43Your father writes that since you were released from custody you have had 'a complete turnaround for the better'. This includes you working and reconnecting with your family, including your two children. Your father also writes that you have been avoiding people who might put you back in harm’s way or disrupt your progress.
44Your employer, Peter Manolidis, writes that you have been employed with his business since November 2023. During that time, you have consistently demonstrated a strong work ethic, reliability, and a positive attitude towards your responsibilities. Mr Manolidis is fully supportive of your efforts to reform and integrate into the workforce. You have maintained excellent attendance and responsibility.
45I have also had regard to your undated letter addressed to me. I accept that you have made significant efforts towards your rehabilitation, as you have clearly outlined in your letter. Much of what you say concerning your rehabilitation is supported by other documents tendered on your behalf. However, I do not accept your assertion that your actions were driven by experimentation, rather than an intention to engage in commercial activity. This appears to be at odds with what you told police and also at odds, in my opinion, with the money, time and effort you put into cultivation.
Criminal Record
46You have admitted your criminal record. You have relevant prior convictions.
47Your record dates back to 4 December 2015 when, for a number of dishonesty offences, you were sentenced to 14 days' imprisonment and placed on a 12-month Community Correction Order ('CCO'). The CCO had a number of conditions including that you undergo assessment and treatment for drug abuse and dependency.
48On 21 July 2016 you were sentenced to seven days' imprisonment for a charge of theft and committing an indictable offence on bail.
49On 26 October 2016 you were fined for contravening your CCO and resentenced on the original charges by way of variation of the original CCO.
50On that same day, at the Heidelberg Magistrates' Court, you were convicted and placed on a 12 month CCO for numerous driving offences, dishonesty offences, driving whilst suspended, failing to stop a vehicle after an accident, failing an oral fluid test within three hours of being in charge of a vehicle, two charges of possessing methylamphetamine, two charges of possessing cannabis and a charge of cultivating cannabis.
51On 15 November 2016 you were fined for handling or receiving stolen goods and two driving offences.
52On 27 September 2017, at the Heidelberg Magistrates' Court, for contravening the CCO imposed on 26 October 2016, the original order was confirmed and you were convicted and placed on a CCO for a period of six months.
53On 21 June 2018, you were again before the Heidelberg Magistrates' Court for contravening the CCO. The order was cancelled, and you were fined an aggregate sum of $10,000.
54On 13 August 2018, for a number of offences, including offences of dishonesty, you were sentenced to an aggregate sentence of 52 days' imprisonment.
55On 12 April 2022, for the offence of possessing methylamphetamine, you were placed on a 12-month community correction order. Charge 2 of theft of electricity, occurred during the currency of that order.
56Your most recent prior conviction was on 8 November 2022 for offences of unlicensed driving, using an unregistered motor vehicle and fraudulently using a registration label. You were fined an aggregate amount of $1,000.
57I note that the Community Correction Orders imposed have all included therapeutic conditions that you be assessed and treated for drug abuse or dependency.
Sentencing considerations
58The offence of cultivation of cannabis in a commercial quantity carries a maximum penalty of 25 years' imprisonment and is a category 2 offence under the Sentencing Act 1991. The offence of theft has a maximum penalty of 10 years' imprisonment. The maximum penalties that may be imposed reflect Parliament's view of the inherent seriousness of each offence. Clearly, the offence of cultivating a commercial quantity of cannabis is a most serious offence.
59In assessing the objective gravity of your offending, I have had regard to the quantity of cannabis you cultivated, the relative sophistication of the hydroponic system used to cultivate the cannabis, your role in the offending, and the degree of planning that must have been involved. It is clear that your offending was premeditated and planned. I also have regard to the fact that you are charged in respect to a single day of cultivation, and a period of approximately two months for the theft of electricity.
60
Consistent with the jury's verdict, it was your intention to cultivate not less than a commercial quantity of cannabis. A commercial quantity of cannabis is at least
100 plants or 25 kilograms by weight.
61Mr Petric, who appeared on behalf of the Director of Public Prosecutions, submitted, correctly, that the quantity of drug cultivated is ordinarily a factor of critical importance. You cultivated 1.97 times the number of plants required to constitute a commercial quantity and 2.61 times the commercial quantity of cannabis measured by weight.
62Your counsel conceded that the quantity of cannabis you cultivated was significant. He stated that it was 'a crop of your own creation'. It was you who purchased the necessary equipment, you who went to considerable effort to set up the hydroponic system, you who cultivated the crop, and you who installed the electrical bypass. It is not suggested that you were part of an organised syndicate. You stood to gain from whatever rewards accrued from your illegal activity. I consider that your motive in cultivating the cannabis was one of financial gain.
63To the extent that it is helpful to characterise the seriousness of your offending in terms of falling within a range, I find that your offending falls within the mid-range level of seriousness for this type of offending.
64I find that your level of moral culpability for this offending is relatively high. While I accept Mr Dickenson's submission that the impact on you of your mother's regular use of methylamphetamine, her suffering psychosis and her abandoning the family when you were a young child serves to reduce your level of moral culpability, I must also have regard to the fact that you have previously appeared before the courts on many occasions, as I earlier outlined, including for an offence of cultivating cannabis. At your plea hearing I was told that notwithstanding your prior conviction for cultivation, and your plea of guilty to that charge, you instructed your counsel that you did not then in fact engage in cultivation. In the absence of any evidence, I am not able to accept that assertion.
65While your offending, according to Ms Cidoni, was significantly influenced by your heavy methylamphetamine use and its impact on your judgment and impulsivity, it is also clear that there was considerable planning and deliberate conduct in the purchase and set up of the hydroponic system, in the cultivation of the cannabis and in the theft of electricity. You had ample opportunity to reflect on the wrongfulness of your offending, yet you did not stop until you were ultimately apprehended by police.
66You pleaded not guilty to the charge of cultivating a commercial quantity of cannabis. That was your right. While you are not to be punished for exercising your right, your plea of not guilty means that you are not entitled to the usual sentencing benefits that attach to pleas of guilty. I will take into account, however, in your favour, your plea of guilty to the theft charge and the limited basis on which you challenged the principal charge. You accepted that the cannabis being cultivated was yours, and you did not seek to distance yourself from it.
67Notwithstanding your plea of not guilty to the cultivation charge, I accept that there are some indicators of your remorse. This is mainly evidenced through your considerable efforts to rehabilitate since your release on bail, the opinions of your character referees, and the admissions you made to police.
68Regarding your prospects of rehabilitation, and your recent efforts, I accept that they may be viewed with a good degree of optimism. You also have the strong support of your family and partner. Mr Dickenson submitted, with good reason, that you have done everything in your power to rehabilitate yourself. You have no other charges pending against you. However, I cannot accept his submission that your prospects are excellent. There is still a need for caution, given your lengthy history of significant drug use, your previous offending, your breaches of previous Court orders and the need for continued counselling. There is still some need that the sentence to be imposed deter you from further offending.
69In my opinion, the sentencing consideration of general deterrence is of primary importance. People who engage in, or are minded to engage in, such activity must understand that they will be met with stern punishment, often measured in years of imprisonment. I am also required to have regard to the need to denounce your conduct, to protect the community, and justly to punish you for your offending.
70In sentencing you, I have also had regard to current sentencing practice. I have considered each of the cases to which I was referred by counsel.[1]
[1] Dang v The Queen [2022] VSCA 69; Le v The Queen [2021] VSCA 220; Symons v The Queen [2021] VSCA 276; Nguyen v The Queen [2021] VSCA 211; Nguyen v The Queen [2017] VSCA 286; Bui v The Queen [2015] VSCA 313; Pham v The Queen [2018] VSCA 308; Nguyen v The Queen [2019] VSCA 134; DPP v Nguyen [2024] VCC 1128; DPP v Price [2024] VCC 229; DPP v Nguyen [2023] VCC 2187; DPP v Latiff [2012] VCC 1827; DPP v Buchanan [2019] VCC 290; DPP v Alexiades [2019] VCC 1807; DPP v Burrniku [2019] VCC 138; DPP v Radovanovic [2022] VCC 666; DPP v Vu [2018] VCC 546; DPP v Devlin [2016] VCC 1814.
71Sentences passed in other cases may provide some assistance in informing the instinctive synthesis, but they are not precedents that must be followed. Each case must ultimately be decided by reference to the circumstances personal to you, the circumstances of your offending, and the aggravating and mitigating features present in your case.
72
Your counsel, Mr Dickenson, submitted that I should impose a sentence of imprisonment of 51 days in respect of Charge 1, and a Community Correction Order on Charge 2. He submitted that I should impose a merciful sentence in respect of the cultivation offence given your significant steps at rehabilitation since being admitted to bail. I cannot accept his submission regarding sentence. A sentence of 51 days for the offence of cultivating a commercial quantity of cannabis, in my opinion, would fail to address all the relevant sentencing considerations to which I am required to have regard. It would also mark a significant departure from current sentencing practice. While your significant efforts at rehabilitation will be recognised in both the head sentence and
non-parole period to be imposed, rehabilitation is only one factor to which I must have regard in the proper exercise of my sentencing discretion. I do not consider it to be, in all the circumstances, the dominant sentencing consideration or one that warrants the sentence suggested by your counsel. Mr Ramadan, would you now please stand.
Sentence
73On Charge 1, cultivation of cannabis in not less than the commercial quantity, you are convicted and sentenced to two years and three months' imprisonment.
74On Charge 2, theft, you are convicted and sentenced to six months' imprisonment.
75One month of the sentence imposed on Charge 2 is to served cumulatively on the sentence imposed on Charge 1. This makes a total effective sentence of two years and four months' imprisonment.
76
I turn now to the non-parole period. The purpose of parole is to provide for mitigation in punishment in favour of rehabilitation through conditional release where it is appropriate. A non-parole period is the minimum time that justice requires you to serve taking into account all of the circumstances of the case. Having regard to the fact you have made considerable progress since your release on bail, I propose to set a relatively short non-parole period of 12 months. The non parole is set at that level having regard to all that you have done in the last
18 months, and to ensure that upon your release on parole, you will have a supervised transition back into the community.
77Pursuant to s18 of the Sentencing Act 1991 the period of 51 days is to be reckoned as the period of imprisonment already served under the sentence.
78I will make the disposal and compensation orders sought, they having previously been consented to by Mr Dickenson.
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