Director of Public Prosecutions v Rustemovski
[2019] VCC 1874
•15 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-01908
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRPARIM RUSTEMOVSKI |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2019 | |
DATE OF SENTENCE: | 15 November 2019 | |
CASE MAY BE CITED AS: | DPP v Rustemovski | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1874 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking (cocaine) - non-prohibited person possessing unregistered longarm - failure to store longarm - no prior convictions - combination sentence
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: 53 days imprisonment and 18 month Community Correction Order for indictable offences; conviction and $500 fine for summary offence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.J.S. Jassar | Office of Public Prosecutions |
| For the Accused | Mr R. van de Wiel QC | Stephen Andrianakis & Associates |
HER HONOUR:
1 Prparim Rustemovski, you have pleaded guilty to three counts of trafficking in a drug of dependence, namely cocaine, for which the maximum penalty is 15 years' imprisonment, and one count of being a non-prohibited person possessing an unregistered longarm, for which the maximum penalty (for a first offence) is 240 penalty units or four years' imprisonment.
2 You have also consented to the uplifting of Summary Charge 3, that of failing to store the longarm in the appropriate manner, and have pleaded guilty to that charge, for which the maximum penalty is 60 penalty units or 12 months' imprisonment.
3 Finally, you have consented to the disposal and forfeiture orders sought by the Crown. You have been in custody for 53 days, not including today, which represents the applicable pre-sentence detention period.
4 You were arraigned yesterday on a fresh indictment which reflected the resolution of a number of outstanding issues between your counsel and the prosecution.
5 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening and I sentence you on the basis of the facts set out in that document. Your offending can be briefly summarised.
6 Police investigations into drug trafficking in 2017 targeted a number of persons, including your cousin, Sami Rustemovski, and Nehro Pirzahiri. Covert operatives purchased various drugs and controlled substances from their targets. Telephone intercepts on the phone of Mr Pirzahiri revealed a number of calls to you during the period of offending.
7 Charge 1 concerns your providing two grams of cocaine to Mr Pirzahiri (at his request) by dropping it in his letter box on 3 September 2017. Mr Pirzahiri stated that the drugs were to be provided by him to another person.
8 Charge 2 concerns a similar arrangement for you to supply Mr Pirzahiri with two grams of cocaine on 16 September 2017.
9
Charge 3 concerns your conduct in supplying three ounces of cocaine to
Mr Pirzahiri, who had arranged to sell this quantity to covert operatives on
19 September 2017.
10 A search warrant executed at Pirzahiri's residence on 21 September 2017 revealed the three ounces of cocaine which you had supplied to him two days earlier. That cocaine weighed 84.6 grams and was of 42 per cent purity.
11 A search warrant executed at your residence on the same day located, among other things, a number of guns registered in your name. All but one of these, a Beretta 12-gauge double-barrel shotgun, were properly stored in a firearms safe. Summary Charge 3 concerns your failure to properly store that Beretta.
12 Your personal circumstances may be briefly summarised. You are 33 years old and married with three young children. You live with your wife, your three children, your parents and your brother. You have no prior convictions. You were born in Sydney but lived and went to school for some time in Macedonia. You completed Year 12 here. Whilst in high school here, you worked in a chicken shop for Mr Jim Memeti. He provided a reference for you, in which he states that you worked hard for him.
13
After finishing school, you started managing that chicken shop owned by
Mr Memeti. Your family then bought a share in a chicken shop, and eventually bought the chicken shop in its entirety, and also purchased a farm. You worked in all these ventures together. The chicken shop opens seven days a week and employs your family and three to four other people. You have always worked hard, and your only social outlet has been going to gym.
14 You bought a butchers shop in 2015 for $450,000, hoping to supply it with the cattle from your farm. However, that business failed, and although you had spent about $75,000 on renovating the shop, you sold the shop at a loss in late 2018 for about $250,000.
15 When the butcher shop business was in decline, you felt a sense of failure. Until the age of 30, you had never drunk alcohol. You were socially awkward. Your cousin, Sami Rustemovski, who worked in security in various nightclubs, encouraged you to work nights in those venues. He introduced you to cocaine, which made it easier for you to cope socially. And your offending occurred in that context.
16 After you were released on bail, you worked in the family business, and also obtained a heavy vehicle licence. You have worked as a delivery driver part-time to help pay for your legal expenses.
17
In June 2018, your GP referred you for counselling to clinical psychologist,
Dr Paul Sadler. You have seen him four times in accordance with your Mental Health Care Plan. He diagnosed you with an adjustment disorder with depressive features in association with the current legal matters. He noted that you are showing signs of recovery but would benefit from ongoing counselling. Through your counsel, you indicated that although your doctor prescribed you with an antidepressant, you ceased taking it because of its side effects. You continue to take Temazepam to assist you with sleep.
18 Your bail was revoked on 23 September 2019 due to further matters to be heard in the Magistrates' Court, in the next few days. Whilst in custody at the Melbourne Assessment Prison, you worked in the kitchen. Since being moved to Fulham Correctional Centre, you have been unable to obtain work due to the large number of prisoners and the unavailability of positions.
19 Your counsel emphasised your lack of prior convictions; your plea of guilty; your history of hard work and care for your family; the fact that the limited trafficking conduct was at a street level, to a friend at his request; your strong family support; your excellent prospects of rehabilitation; and the fact that the firearm charge is not connected with the trafficking. It was submitted that the appropriate disposition on the trafficking charges is the imposition of a Community Correction Order ('CCO') with time served, and that a pecuniary penalty could be imposed for the summary firearms offence.
20 The prosecution conceded your lack of prior convictions. It also conceded that in the context of the large scale trafficking operation being run by your cousin and Mr Pirzahiri, your offending is that of a low end supplier, whose role was limited to obtaining drugs from another unknown source to meet Mr Pirzahiri's requests. It was also conceded that parity plays no role in your sentence. It was submitted that you expressed no remorse, apart from the remorse which inheres in your plea of guilty, but it was conceded that there was also utilitarian value in the plea in terms of sparing the expense of a trial. Whilst emphasising the importance of the sentencing principles of general deterrence and just punishment, the prosecution conceded that those principles could be satisfied by the imposition of a CCO, on top of time served.
21 You were assessed by Corrections Victoria as suitable to undergo a CCO with conditions of mental health assessment and treatment, drug assessment and treatment, community work, and supervision.
22 I accept the matters put on your behalf by your counsel. Your offending was of a very limited scope and duration during a period when you had been introduced to cocaine by your cousin and were somewhat overwhelmed by the failure of your butchery business. You have no prior convictions. You trafficked at a low level to a friend at his request when he could not get supplies elsewhere. You pleaded guilty once the charges were ultimately agreed upon. You have a long history of employment, have been a devoted family man, and continue to work hard in your chicken business.
23 I acknowledge the importance of the principles of general deterrence and just punishment. In terms of specific deterrence, you have spent 53 days in pre-sentence detention, which is your first time in custody. I consider that you have very good prospects of rehabilitation, provided that you stay away from drugs and continue to receive some counselling in relation to your psychological condition and how to deal with adverse life events such as a business failure.
24 In all the circumstances, I consider that the relevant sentencing principles can be satisfied by the imposition of a combination sentence representing the time you have already served in prison, together with a CCO for a period of 18 months, with the conditions of supervision, drug assessment and treatment, mental health assessment and treatment, and community work.
25 Mr Rustemovski, would you please stand?
26 On Charges 1, 2, 3 and 4 on the Indictment, you are convicted and sentenced to 53 days' imprisonment, together with a Community Correction Order for a period of 18 months.
27 On Summary Charge 3, you are convicted and fined $500.
28 I declare that you have served a period of 53 days in pre-sentence detention and direct that this period is to be entered into the court records and deducted administratively from your sentence to be served.
29 In relation to the Community Correction Order, you will be subject to supervision and are required to complete 50 hours of unpaid community work, as well as mental health assessment and treatment. I direct that up to 50 hours of your participation in counselling may be credited as hours of unpaid community work; so, it gives you an incentive to attend further sessions of counselling. I remind you that you are being given an opportunity by this order to address your mental health and drug use problems which are clearly connected to your offending, and that it is vital that you engage with those treatment options provided to you during the order, so as to minimise any risk of reoffending.
30 In addition to the conditions that I have specifically imposed, you must also abide to the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the operation of the order - that is, 18 months from the day that the order commences, which will be once you are released from custody - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a community corrections officer. You must report to the Community Corrections Centre at Dandenong within two clear working days of being released from custody in relation to your upcoming Magistrates' Court matters. You must not leave Victoria without first getting permission from a community corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. And finally, you must obey all lawful instructions from, and directions of, community corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
31 OFFENDER: Yes, Your Honour.
32 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months' imprisonment. If you contravene the Community Correction Order, it carries with it the prospect that you will be brought back before me and resentencing for the original charges.
33 Do you consent, in the circumstances, to the imposition of the Community Correction Order?
34 OFFENDER: Yes.
35 HER HONOUR: I indicate, pursuant to s 6AAA of the Sentencing Act, that but for your plea of guilty, I would have sentenced you to six months' imprisonment.
36 The prosecution has also sought forfeiture and disposal orders in relation to items connected to the offending, and I will make those orders because I consider it in the interests of justice for those orders to be made, and because you have consented through your counsel to those orders being made.
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