Director of Public Prosecutions v Saydali

[2020] VCC 876

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02395

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAHLIL SAYDALI

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2020
DATE OF SENTENCE:	17 June 2020
CASE MAY BE CITED AS:	DPP v Saydali
MEDIUM NEUTRAL CITATION:	[2020] VCC 876

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Botros	Solicitor for the Office of Public Prosecutions
For the Accused	Mr T. Cooper	Randles Cooper Lawyers

HER HONOUR:

1       Kahlil Saydali, you have pleaded guilty to one charge of cultivating a narcotic plant, being a commercial quantity, the maximum penalty is 25 years’ imprisonment, and one charge of theft, the maximum penalty 10 years’ imprisonment.

2       These crimes arise out of events which took place on 7 August 2019.  It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in the case are most serious.

3       I turn to your background.  You were born in Iraq but fled with family to Iran when you were 5-7 years of age.  You are 40 years of age and came to Australia in 1999 with your wife and two children.  In 2014 you and your wife divorced and you sent your children back to Iran to live with your parents.

4       I turn to your offending.

5       On 7 August 2019 at approximately 1.00pm, police from Mill Park Divisional Response Unit attended your home at 6 Hales Court, Mill Park and executed a search warrant.  You were not present at the time.

6       A search of the premises was undertaken and a sophisticated hydroponic cannabis set up was located by police.  In total four active grow rows were located inside the house.  Three rooms contained mature cannabis plants, and one contained juvenile cannabis plants cultivated in pots with a lighting system in place.  A series of photographs of the home were taken.

7       Meter Investigations Co-ordinator David Weston from AusNet Services and Electrical Technician Rohan Carrig both attended 6 Hales Court, Mill Park and rendered the premises safe by locating and disconnecting an illegally installed electrical bypass.  An irregular wiring connection had been made at the supply point of attachment under the premises allowing that connection to not be measured (Charge 2, theft of electricity).

8       Mr Weston and Mr Carrig identified four rooms with lamps and ballasts installed.  All those rooms were connected to a timing device on a switchboard set for 12 hours operation each day.  In total, Mr Weston concluded the equipment would use approximately 237 kWhrs per day.

9       At approximately 1.30pm while police searched your home, you returned and were arrested.

10      From the four grow rooms located at the address police seized a total of 91 cannabis plants of varying weights and sizes in pots of soil as follows: 

(a)      in grow room 1 – 9 cannabis plants;

(b)      in grow room 2 – 18 cannabis plants;

(c)       in grow room 3 – 9 cannabis plants; and

(d)      in grow room 4 – 55 cannabis plants.

11      These plants were examined by botanist Susan Fiddian and confirmed to be cannabis with a total weight of 54.24 kilograms.

12      In addition to the plants to which I have referred, police also seized dried green vegetable matter from a kitchen bench (cannabis, weighing 5.1 grams), a heating light globe from the top of a filing cabinet in the front bedroom and your Samsung mobile phone.

13      You were interviewed on 7 August 2019.  In it you said you were the owner and only occupier of 6 Hales Court, Mill Park, however denied any involvement in the cultivation of the plants, stating they were tended to by “Jayk”.  You mostly answered “no comment” to many questions, however said the plants had been present for a few months.

14      You said you met “Jayk” through purchasing cannabis from him.  That “Jayk” had a key to your home and went to the address every few days to tend the plants.  You denied knowledge of installation of the electrical bypass.

15      Police conducted a further investigation regarding “Jayk”.  Your phone records revealed $1,900 was deposited into your Commonwealth Bank account on two separate occasions by “Jayk” for rent.  Police believe that money was paid by “Jayk” to you to use the address to cultivate cannabis.  During the search of the property no other beds were located in it to indicate that “Jayk” or any other persons lived at that property other than you.

16      Investigation of the text messages between you and “Jayk” revealed knowledge by you of the cultivation and you offering assistance with it on multiple occasions.  Some examples of your knowledge of the cannabis cultivation were within the prosecution opening (Exhibit A paragraph 21).

17      Police have not located “Jayk” and no other persons have been charged with any related offending.  Parity is not a sentencing consideration.

18      You pleaded guilty at the second committal mention on 29 November 2019 and the matter proceeded by way of straight hand-up brief.

19      You have pleaded guilty to these charges and you are entitled to have that fact taken into account when sentencing you and I have.  By your pleas of guilty you have saved the time and cost of a trial and witnesses have not been required to give evidence at your trial.

20      I also accept your pleas of guilty were indicated at an early stage and such is also relevant in your favour when sentencing you.

21      I note you do not have any prior criminal history nor anything subsequent or pending.

22 The offence of cultivate a commercial quantity of cannabis is a Category 2 offence pursuant to s3(1) Sentencing Act 1991. Therefore, pursuant to s5(2H) I must make an order for imprisonment for Category 2 offences unless one of the criteria under s5(2H)(a) - (e) applies. Counsel who appeared on your behalf at the plea hearing did not rely upon any exceptions to a sentence of imprisonment being imposed for this offending and that concession, in my opinion, was appropriate on the material before me.

23      Counsel who appeared on your behalf, Mr Cooper, prepared a written outline of submissions for your plea hearing (Exhibit 1) and addressed them during the course of it.

24      Ultimately Mr Cooper’s submission was that the appropriate sentence for your offending would be a head sentence with a non-parole period of 310 days served (as at your plea hearing) as an appropriate non-parole period.

25      Your counsel referred to your early pleas of guilty and I have referred to those.  That you do not have any criminal history and that this is your first time in custody, and I am also aware of that.

26      Reference was made to your admissions of guilt and remorse also in your application for bail heard on 8 August 2019 and also noted by Ms Pamela Matthew, forensic psychologist, in her report of 18 February 2020 to which I shall shortly refer.

27      Addressing R v Verdins & Ors[1] principles five and six, Mr Cooper submitted you met the DSM-5 diagnostic criteria for Major Depressive Disorder (moderate) and were being managed in prison for depression with Seroquel and Sertraline.  Further, at the time of your offending you met the DSM-5 diagnostic criteria for cannabis use disorder.  Mr Cooper relied upon Ms Matthews report that your depressed mood state and cannabis use at the time of your offending were interactive and your offending a result of the combined effects of the two conditions.  He urged that applied also to your time in custody, thus limbs five and six.

[1](2007) 16 VR 269 (‘Verdins’).

28      I discussed this with Mr Cooper.  Mr Cooper conceded Ms Matthews did not specifically address Verdins principles five and six.  Expert opinion is normally necessary (DPP v O’Neill).[2]  It is also apparent you are no longer using cannabis and are appropriately medicated in custody.

[2](2015) 47 VR 395, 415 [77-78] (‘O’Neill’).

29      Mr Botros on behalf of the prosecution in his oral submissions also referred to Ms Matthews failure to specifically address Verdins principles five and six.

30      Submissions regarding Verdins require rigorous evaluation of the evidence.  Expert evidence should be scrutinized with care, and where appropriate, a challenge made to the adequacy of the materials (O’Neill [80-81]).

31      Turning to your background and history, you have three daughters, six, seven and eight years of age, for whom you have sole parental responsibility.  You became the carer for the three children when your youngest child was 12 months of age and your wife left the family home.  It appears you could have the children live with you, however, have chosen not to.

32      In approximately 2016 the children went to Iran to live with their paternal grandparents, and you continued to work in Australia to provide for them, staying in contact via video calls.

33      In Australia you had been employed as a land surveyor and from 2009 until just prior to your arrest ran your own surveying business.  You intend to return to that work following your eventual release.

34      Describing your role in this offending, you said you knew “Jayk” through purchasing cannabis for your own use and that “Jayk” set up the grow rooms, had a key to your home and attended the address every few days. 

35      You received two separate payments of $1,900 from “Jayk” and Mr Cooper urged that was the only financial benefit you received.  You also, I noted, received cannabis to “smoke”.  Regarding the grow rooms, you said that they were established in approximately March 2019 with a bypass set up by third parties.  You said you did not know how they did it, they just told you they had done it under the house.

36      You instructed you were not involved in the maintenance of the grow rooms; however, I note you were willing to participate in it if required and if asked as evidenced by messages sent by you to “Jayk”.

37      I accept you were cooperative with police regarding “Jayk”.  There was no evidence of any enrichment (i.e. flashy lifestyle) from your involvement, I digress, two rental payments were made to you, also cannabis provided, no doubt the latter saving you the cost of purchase.  Whilst I accept you did not live a “flashy lifestyle” from the funds received, that is relative.  The money received helped with your expenses.

38      Regarding your risk of further offending, Mr Cooper submitted you had now detoxed and would benefit from offender behaviour programs to assist to examine your underlying mental state and factors relevant to your offending.

39      Mr Cooper urged there was a likelihood your house would be forfeited and I discussed that submission relevant to my sentence (Exhibit 3 Copy of Certificate of Title).  The material before me does not permit me to make a decision regarding forfeiture.  In particular I note you have lodged an exclusion application to be heard following the finalisation of these criminal proceedings, on another day.  I can only speculate regarding the outcome of that hearing.  No material was before me to enable me to determine that application.

40      Turning to your personal history, at the time of the offending you were 39 and are 40, as I have said, at sentence.  You were born in the Kurdish area of Iraq, your family was forced to flee under the Hussain regime.  Your family moved to Iran when you were five to seven years of age and your family remained there.  In 1999 you came to Australia as a refugee via Indonesia spending a year at the Woomera Detention Centre.  In Melbourne you gained employment and you have been sending money home to your family since your arrival.

41      You learnt to read and write English after you arrived and worked for a land surveyor for several years and, as I have previously said, in 2009 started up your own surveying business.

42      In 2008 you married and there are three children, as I have said, of that marriage.  In 2009 you purchased the family home in Mill Park, the location of the crop, and in 2014 your marriage ended.

43      In approximately 2016 you took the children to Iran where they remain under the care of your parents and family.

44      Mr Cooper urged that in custody due to the circumstances in Iran, you were concerned your children were not safe.  You referred to being in Australia, your family and your children on the other side of the world.  You were, however, in my opinion, not giving much thought to your children’s needs at the time of your offending.  I have no doubt you were aware of the illegality of your offending and likely imprisonment if detected.  Whilst family hardships amounting to exceptional circumstances was not relied upon by Mr Cooper, I accept in custody you will have less opportunity to have contact with your children and will be concerned about your inability to earn money and help support them.

45      Mr Cooper referred to authorities relevant to this type of offending and addressed some during the course of your plea hearing.  It is difficult comparing cases factually as facts vary enormously case to case as do all matters in mitigation and personal to an offender.  Ultimately, I have to determine the appropriate sentence based on all the circumstances relevant to your offending and to you.

46      I turn to the report from Pamela Matthews dated 18 February 2020 (Exhibit 2).  She noted in your police interview you said the person responsible was “Jayk” and that you knew the rooms were used for the cultivation of cannabis.  You maintained, however, you did not know of the electricity theft and did not notice the absence of an electricity bill.  At your bail hearing on 8 August 2019, you also admitted you knew of the cultivation of cannabis and allowed it to occur.

47      Ms Matthews referred to your psychosocial history, which I have read and will not repeat in detail, as I have already referred to parts of that.

48      Turning to development of your depression, in part you referred to the community “whispering” that you had been a bad/abusive husband, and you felt ashamed because it looked like you had done something wrong.  You then found out your wife was with another man and you decided in essence to isolate yourself.  You did not want to see anybody; you just went to work and came home.  You became increasingly isolated from your cultural community.

49      You reported a two year period of low mood, poor sleep, worrying, crying, withdrawal from normal everyday activities and thoughts of suicide.  On your self-report, Ms Matthews concluded you met the diagnostic criteria for Major Depressive Disorder (moderate).

50      You were prescribed Seroquel and Sertraline.  The prescription you said was from Iran, obtained on your annual visit there.  In Australia you said you had not been to see a doctor.

51      At the time of your offending, you told Ms Matthews you were smoking 2 to 3 grams of cannabis a day.  In custody, I note you completed a Certificate ‘Cannabis & Me’ (Exhibit 4).  You are now abstinent from that use.

52      You reported you had used cannabis as a form of self-medication, smoking approximately 3 grams a day, as a means of coping with your depression.  In the opinion of Ms Matthews, on your self-report, you also met the criteria for cannabis use disorder.

53      In the opinion of Ms Matthews, your depressed mood state and cannabis use at the time of your offending were interactive, and impaired your ability to “reconsider/reason” beyond the limited sphere you were functioning in.

54      Turning to your rehabilitation, Ms Matthews, based again on your self-report, noted you had now detoxified, and your mood had improved and stabilised with medication.  She thought you may require further intervention regarding your drug use and may also benefit from an offending behaviour program.

55      Mr Cooper urged regarding your rehabilitation prospects, you were otherwise a hardworking person, with good prospects of rehabilitation and that you hoped to return to work upon your eventual release.  You had detoxed in custody and in the 310 days on remand at that time had the opportunity to reflect on your offending.  I consider your rehabilitation prospects to be good, in particular if you continue cessation of your cannabis use and continue to take prescribed medication for depression.

56      Mr Cooper conceded your offending was appropriately described as
mid-range but urged your offending was closer to DPP v Pham[3] and DPP v McGillien.[4]

[3][2020] VCC 295.

[4][2019] VCC 1715 (‘McGillien’).

57      The prosecution prepared an outline of submissions on sentence and addressed them during the course of the plea hearing.  The prosecutor, Mr Botros, noted that this was a Category 2 offence and the Court was obliged to impose a custodial sentence unless one or more of the criteria in s5(2H)(a)-(e) were satisfied.  The prosecution submitted none of those criteria were satisfied in your case and nor in fact, I note, was Mr Cooper urging that there were.

58      The prosecution referred to the need for general deterrence as an important sentencing consideration for this offending and I agree.

59      Turning to the nature and gravity of your offending, Mr Botros submitted you permitted your home to be used to grow cannabis hydroponically, and in return received money and cannabis for your personal use.  That the operation was commercial in nature, given the quantity of cannabis, the sophisticated hydroponic set-up and installation of electrical bypass.  I agree.

60      The prosecution accepted you were not the principal of this operation, however, were a “crop sitter” responsible for residing at the premises and assisting to tend to the plants if/when required.

61      Your offending, the prosecution submitted, fell at the mid-range of objective seriousness.  I agree.  You volunteered to assist with the cultivation of plants, and the weight of the cannabis seized (approximately 54 kilograms) was more than double a commercial quantity.  Further, notwithstanding you were charged on a nominal date, your offending occurred over a period of months (acknowledged by you in your record of interview).

62      Your offending, Mr Botros submitted, was not spontaneous.

63      You were not driven by hardship as you were employed full time at the time and owned the property you lived in (with a mortgage).

64      As to the theft of electricity, Charge 2, the prosecution was unable to quantify the value of the electricity stolen, therefore accepted it warranted the lowest level of imprisonment.

65      The prosecution noted your pleas of guilty to both offences were entered prior to the committal hearing and that you were entitled to a discount for an early plea.  I agree and I have previously addressed this.

66      Further, you did not have any criminal history, however as the prosecution submitted whilst that lack of criminal history is a relevant consideration, in Tsang v DPP (Cth),[5] the Court noted prior good character was generally given less weight as a mitigating factor when sentencing drug offenders.

[5](2011) 35 VR 240, 274 [162].

67      Turning to the forfeiture application, the prosecution noted, as do I, you have filed an Exclusion Application, as I have previously said, to prevent forfeiture of that property.  That application is not yet determined.  I am not required to speculate as to any potential forfeiture (R v McLeod).[6]  The prosecution submitted, and I agree, the forfeiture of the property cannot be taken into account at this time, as it would require speculation by me as to the likely outcome of the exclusion application.  There was, he urged, insufficient evidence before me to form a concluded view of the application.  I agree.  In particular Mr Botros submitted, there was no evidence as to the value of the property, the value of your interest in the property (noting it was mortgaged), the effect upon you of losing your interest in that property, and the prospect of success of the exclusion application or prospect of settlement.

[6](2007) 16 VR 682.

68      The prosecution provided a number of appellate and first instance decisions relevant to your offending (Annexure A and Annexure B).  I have read those cases.  Comparable cases do assist with sentencing, however, as the prosecution noted, it is only one of many sentencing considerations, and not a controlling factor.

69      Mr Botros referred me to five authorities conceding none were ‘on all fours’ with your offending, however, urged they provided a useful ‘yardstick’.  In particular I was referred to McGillien by the prosecution in reply to Mr Cooper’s submission and he urged that case was distinguishable from yours.  In that case, there was a forfeiture order and the court in that case took into account that the property would be forfeited.  That offender was 63 years of age at sentence.  The amount of cannabis also significantly less than in your case.  That McGillien had significant health issues which were specifically addressed in the report of Ms Matthews as impacting adversely upon that offender in custody (Verdins principles 5 and 6 enlivened).  McGillien’s offending for his own use or for others as medicinal.  Mr Botros urged that decision was not comparable to your offending.  As I have previously stated, it is difficult comparing cases factually.  Ultimately, I need to determine the appropriate disposition based on all the relevant sentencing considerations in your case.

70      Addressing Mr Cooper’s submission that time served of 310 days (as at your plea hearing) was an appropriate non-parole period, Mr Botros submitted such would be an inadequate sentence and I agree.

71      As well as matters personal to you to which I have referred including your prospects of rehabilitation, I must also take into account the need for general deterrence when sentencing which is important in a case such as this.

72      There is also the need for specific deterrence when sentencing you, as, whilst the charge date relates to a specific date, it is clear that over a few months prior you were aware of the cultivation of the cannabis and on a number of occasions in text messages stated your willingness to participate if required/asked.

73      There is also the need to protect the community from you and bear in mind the likelihood of your re-offending, however I am comforted by your lack of prior offending or anything subsequent or pending.

74      I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

75      I sentence you as follows.

76      On Charge 1 – convicted and sentenced to 2 years and 2 months' imprisonment.

77      On Charge 2 – convicted and sentenced to 6 months’ imprisonment.

78      I direct that Charge 1 is the base sentence and I direct that 2 months of Charge 2 be served cumulatively upon Charge 1.  That results in a total effective sentence of 2 years and 4 months’ imprisonment and I direct you serve a period of 18 months before you are eligible for parole.

79 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 4 years with a non-parole period of 3 years.

80 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 317 days in custody by way of pre‑sentence detention up to and including yesterday, 16 June 2020, and in a moment I will ask counsel to check that, and I direct that that be entered into the records of the Court.

81      The prosecution made application for a Disposal Order.  Counsel who appeared on your behalf did not oppose the making of the Order and I make the Order in the terms sought.

82      So, first things first; everyone all right with the maths?  I am not asking you if you like but did you get the figures written down?  You are all right with those?

83      MR COOPER:  That's correct, Your Honour.

84      HER HONOUR:  Yes.  Very well.

85      MR BOTROS:  Yes, that's correct.

86      HER HONOUR:  Now, 317 up to and including yesterday, the 16th?  Do you both agree?

87      MR COOPER:  Yes, Your Honour.

88      MR BOTROS:  Yes, Your Honour.

89      HER HONOUR:  Yes.  And any other orders sought? 

90      MR COOPER:  No, Your Honour.

91      HER HONOUR:  No.

92      MR COOPER:  No, Your Honour.

93      HER HONOUR:  Excellent.  Very well.  Got all that.  All right then.

94      MR BOTROS:  Nothing further.

95      HER HONOUR:  Yes.  All right. Anything further to mention or not?  No?

96      MR COOPER:  No, Your Honour.

97      HER HONOUR:  No.  All right.  Thank you everybody and thank you, Mr Saydali.  We will be disconnecting the link.  All right.  Thank you.  Thank you everyone.

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