Director of Public Prosecutions v Seferi

[2022] VCC 1741

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21 02195

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLEDAR SEFERI

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2022
DATE OF SENTENCE:	13 October 2022
CASE MAY BE CITED AS:	DPP v Seferi
MEDIUM NEUTRAL CITATION:	[2022] VCC 1741

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW   

Catchwords: Cultivating a narcotic plant (cannabis) – theft – dealing with property suspected of being the proceeds of crime – committing an indictable offence while on bail – mitigating factors – features of PTSD condition – plea of guilty – early hardship from childhood trauma     

Legislation Cited: Drugs, Poisons, and Controlled Substances Act 1981; Sentencing Act1991; Crimes Act 1958; Bail Act 1977

Cases Cited: Dang v the Queen [2022] VSCA 69; R v Verdins & Ors [2007] VSCA 102; Bugmy v R (2013) 302 ALR 192

Sentence: Total Effective Sentence of fifteen months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Taylor	Ms A. Liantzakis
For the Accused	Mr H. Rattray	Mr M. Kelly

HER HONOUR:

1Bledar Seferi, you have pleaded guilty to one charge of cultivating a narcotic plant (cannabis) and one charge of theft.

2You have also agreed to have uplifted, and plead guilty to, two related summary offences.

3The first of these is the charge of dealing with property ($4,950 cash) suspected of being the proceeds of crime; the second is the charge of committing an indictable offence, the cultivation of cannabis, while on bail.

4The maximum penalty for cultivating cannabis in circumstances where it is not suggested that s 72B(a) is engaged, is 15 years’. The maximum penalty for theft is 10 years’.

5The maximum penalty for dealing with property suspected of being the proceeds crime is two years’; the maximum penalty for committing an indictable offence while on bail is three months' imprisonment or 30 penalty units.

Factual basis for sentencing

6You admitted the facts set out in Prosecution Opening dated 16 June 2022. That document became Exhibit A on the plea; it is attached to and forms part of these reasons. I will not repeat each detail of that here, but I set out the facts in summary form.

7Your parents have not lived in Australia for the last two years, but their house at Matlock Court, was targeted in an application for a search warrant pursuant to the Drugs, Poisons, and Controlled Substances Act 1981 (Vic).

8That warrant was executed on 26 November 2020.

9When investigators arrived at the house, they saw a van in the driveway and soon after intercepted it. You were inside, along with a Mr Aliu.

10Police searched the van and found $4,950 in $50 notes in an envelope. This gives rise to summary Charge 5: dealing with property suspected of being the proceeds of crime.

11Ultimately, the police gained entry to the house and found cannabis being grown hydroponically there in four rooms.

12

There was a setup including lampshades, ultraviolet lights suspended from the ceiling and cannabis plants in large plastic pots connected to a watering system. The lights were connected to transformers which were connected to large

purpose-built power boards on timers.

13An electrical bypass was set up. The quantity of the electricity stolen is unknown. This gives rise to Charge two, theft of electricity.

14Investigators seized from the property

·        six mature cannabis plants in room one weighing a total of 12.5 kilograms;

·        10 mature cannabis plants in room two weighing 19.05 kilograms;

·        six mature cannabis plants in room three weighing 11.55 kilograms;

·        40 juvenile cannabis plants in room weighing 471.1 grams; and

·        two plastic water bottles in the lounge room.

15Your DNA was later found on the water bottles.

16Investigators seized 62 plants weighing in a total of 43.57 kilograms. On the plants, approximately 22 were mature plants and 40 were seedling plants.

17The total amount of cannabis is under the commercial threshold in relation to the number of plants and approximately 1.7 times over the commercial threshold in relation to weight.

18Neighbours interviewed by police spoke of seeing a gold Toyota Camry (later established as being registered to you) coming to the property regularly in the period preceding the search. I note that the neighbours also stated that the car registered to a Mr Bylyshi was also seen coming and going from the property.

19The prosecution accepts that it could not prove beyond reasonable doubt your intention to cultivate a commercial quantity of cannabis.

20At the time of these events, you were on bail granted by the Heidelberg Magistrates' Court on 13 November 2019.

21You were arrested and chose to take part in a police interview. In the interview, you told police that the house was rented out but that you did not know the name of the tenant and that you not been inside.

Chronology of these proceedings

22Your offending, as I have said, was detected on 26 November 2020, and you were remanded into custody. You were subsequently granted bail.

23After a range of procedural hearings, I note that you offered through your lawyers, by at least 13 October 2021, to plead guilty to cultivating cannabis (simpliciter), theft, committing an indictable offence on bail and dealing with property suspected of being the proceeds of crime, which is of course the subject of today's plea. The offer was rejected by the prosecution.

24The offer was ultimately reconsidered and accepted on 9 December 2021. You pleaded guilty on arraignment in January this year and your plea hearing took place on 3 October 2022.

25Initially, your lawyers pursued your commitment to the Drug and Alcohol Treatment Court, but for a range of formal reasons this avenue was not available to you.

Criminal record

26You have a brief but relevant criminal record. Most notably, you were convicted of cultivating cannabis and possessing a drug of dependence in the Moorabbin Magistrates' Court on 5 March 2020. On those charges you were placed on a community corrections order of 14 months' duration.

27This offending occurred approximately eight months into that 14-month order.

Gravity of the offending

28You have pleaded guilty to one charge of cultivating of cannabis on a single date. You are not to be sentenced as cultivating cannabis in a commercial quantity. However, I do take into account the quantity of the plants being cultivated in my assessment of your culpability for the charge of trafficking simpliciter. Your counsel conceded that this was a serious example of that charge.

29This quantity was 1.7 times the commercial quantity, but lower than the threshold in terms of plants.

30The plants were being grown in a home directly connected to you and which was effectively, but not exclusively, controlled by you. In this way, I will sentence you as someone more involved than a classical 'crop sitter'; the set up was effortful and required investment.

31It was submitted on your behalf that you did not stand to make financial gain from the sale of the cannabis, that you were part of an enterprise involving others, which involved you giving attention to the plants and allowing for the setup to be in your parents' home.

32It appears that there were other people involved, although, ultimately, they have not been prosecuted. It is difficult for me to make reliable conclusions to the required standard as to your role in the benefit that you stood to obtain from the crop.

33In the end, accepting that some of these issues cannot be resolved either way, I will sentence you according to the prosecution concession that you fall to be sentenced as 'more than a mere crop sitter'. That, I find, is the most that could be said about the circumstances of your offending in terms of role.

Personal circumstances

34You are 34 years old. You were born in Albania. Prior to your migration to Australia your parents held high-ranking positions in the government there.

35You had a normal development until 10 years old. In 1997 the Albanian government collapsed and with it the rule of law. What followed for you and your family was 18 months of danger and instability. Your father was targeted on account of his official status in the government. Public safety was at an end, and on one occasion you saw a man burn to death from your living room window.

36Your schooling was disrupted for approximately 18 months. You completed the equivalent of Year 12 in 2006. You had started smoking cannabis from the age of 13. You arrived in Australia aged approximately 17 years old. The transition was difficult for you, and for your parents, who had previously worked in positions of power, and who had to accept farm labour positions in the Shepparton area when they arrived. Ultimately, you left for Melbourne and took up work with an insurance company which you had obtained with your family's connections. You supported your family for about two years. This sometimes involved shifts both in the early hours of the morning as a cleaner, and then in the office for the insurance company.

37You started a university course in 2009; however, you left after a year, attributing your difficulty to English-language problems. When you were 23, you commenced a relationship with a woman, which involved you both using not only cannabis, but cocaine and methylamphetamine. You also had an escalating drinking problem at this time.

38From age 25 you commenced work as a plasterer, working long hours many days per week. Your mother was diagnosed with dementia when you were around 30 years old.

39Your pattern of cannabis and methylamphetamine use became chronic, although I note that you continued to work, and have developed your own plastering business.

40You reported to a psychologist (whose opinion I will come back to in a moment) that you continue to smoke a gram of cannabis a day, and use ice intermittently, at least weekly.

Psychological material

41On your plea, a psychological report authored by Mr Luke Armstrong was tendered, and it is dated 13 July 2022.

42In it, Mr Armstrong sets out your personal history and background, and concludes that you present with what he terms 'underlying features' of a PTSD condition, and a cannabis-use and stimulant-use disorder, both untreated.

43Mr Armstrong locates features of a PTSD condition, while falling short of arriving at a full diagnosis of that condition. Mr Armstrong locates your PTSD symptoms as arising from the period of violent instability in Albania, in which you and your family lived before your migration to Australia, including your witnessing of horrific acts of violence in your neighbourhood.

44No specific Verdins submissions were enlivened by that material, and none were argued. I take into account the psychological material in a general sense, in appreciating who you are, and why you arrived at this place in your life.

Cumulation concurrency

45I note that in the recent case of Dang v the Queen,[1] the Court of Appeal held that total concurrency is warranted for the cultivation and theft of electricity charges, and dealing with property suspected of being the proceeds of crime charges, those charges being inextricably linked with and part of the offending under Charge 1.[2] I note that, in this landscape, the presumption of concurrency was displaced, on account of this offending being committed on bail.[3] I must balance these propositions.

[1][2022] VSCA 69 (‘Dang’).

[2]Dang, [35]

[3]Sentencing Act 1991 (Vic) ss 16(1A)(e), 16A.

Mitigation

46Your plea of guilty conveys to you a significant discount in this sentence. The benefit to the community of your not running a trial is real. This would be the case at any time but in this period, where the courts have recently endured such difficulty with delays as a result of the pandemic, your plea takes on an extra significance, and will bestow an additional and palpable advantage to you.

Early hardship

47It was not asserted that your disadvantages, suffered particularly as a young person in Albania, ascended to the level of the considerations articulated in the case of Bugmy v The Queen, but it is argued on your behalf, and I take into account, that your difficulties and your early commencement of drug use, and decline into addiction, occurred in the context of some childhood trauma and displacement.

Remorse

48The prosecution accepted that a level of remorse is attached to the plea of guilty, and I find this to that extent.

Rehabilitation

49I must consider your prospects for rehabilitation in this sentence. You come from a well-educated family with no criminal history. You have a strong, indeed, very strong, work history. The level of your addiction seems to have been able to pass undetected, partly due to what is described as your shame about it, and partly due to your ability to function, particularly work, at a high level, notwithstanding your drug use.

50You are now married, and you accept that this marriage will fail unless you sincerely commit to drug and alcohol treatment.

51I read and have considered a range of affectionate and warm letters written by family and friends, and tendered on your plea.

52You have a good family and marriage, and a strong work ethic. These are all reasons why I find your prospects for rehabilitation are medium to good. One factor inhibiting your recovery thus far would appear to be your underestimation of the damage you are causing to your life through your drugtaking. None of the references I note referred to this aspect of your life, perhaps because you have been adept at hiding it from those close to you. If there was any doubt about how seriously your drugtaking is ruining your life, let it end here.

Covid-19 and conditions in custody

53While the COVID-19 restrictions continue to abate, the approach in custody to containing infection still, I understand, confers restrictions on incarcerated people, such that the burden of your imprisonment will be higher than the conditions normally experienced, and I take that into account.

Burden of imprisonment

54Another burden of imprisonment will arise in this way. Although you are a now a citizen of Australia, your partner of three years is Nepalese and is applying for a partner's Visa she has very few social supports aside from you. Your incarceration would affect her application for a visa, and how and where she will be able to live. I take into account on this sentence your concern about her and your future together, and I note that it will weigh on you during a custodial term.

Sentencing principles

55Sentencing the drug offending demands sentences that will act as a general deterrent to others. Given your recent sentence in the Magistrates' court for similar offending, this sentence also has to convey an aspect of specific deterrence to you. If you keep doing this, Mr Seferi, more incarceration follows. There must be denunciation and just punishment, and in the end, sentencing principles in all cases including drugs cases are directed at the protection of the community and this is another feature of your sentence.

Current sentencing practices

56I have taken into account current sentencing practices for offending in a similar category. I have considered the general landscape. No case is exactly like yours though and my job is to do individual justice.

Consideration

57I note that it was argued in this case that special utilitarian value of the plea during COVID-19 justifies the imposition of a different form of sentence than may have been the case prior to the pandemic.

58Your counsel submitted for a lengthy and onerous CCO, or, in the alternative, a sentence that 'allowed for but did not mandate the fixing of a non-parole period'. Initially, your Counsel submitted for a version of a 'home-made' drug treatment order involving your undertaking private rehabilitation on a deferral of sentence.

59At the hearing, I indicated that the circumstances of the case, given your swift return to offending just eight months into a Community Corrections Order for similar offending made a disposition that did not require you to serve further imprisonment unlikely, even with evidence of progress on rehabilitation.

60Given that understanding, your Counsel withdrew the submission for deferral of sentence.

61The prosecution submitted that a combination sentence of imprisonment and Community Corrections Order was below the range available taking into account the fact that you committed this offending during the term of a Community Corrections Order and while on bail.

62I have considered the submissions of both parties and the evidence before me, and in the light of your prior history and the principles of general and specific deterrence in particular, the sentence I will impose on you will require your further imprisonment. So, Mr Seferi, you can stand up now, this is the sentence.

Disposition

63On Charge 1, cultivation of cannabis, you are convicted and sentenced to 15 months' imprisonment

64On Charge 2, theft, you are convicted and sentenced to 5 months' imprisonment.

65On the related summary charge of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months' imprisonment

66On the related summary charge of committing an indictable offence while on bail you are convicted and sentenced to 7 days' imprisonment.

67The sentence on Charge 1 is the base sentence and each of the other sentences are to be served wholly concurrently on that sentence making a total effective sentence of 15 months' imprisonment.

68I direct that you will be required to serve 9 months' imprisonment before becoming eligible for parole.

69I indicate that, pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty and been found guilty by a jury, I would have imposed a sentence of 22 months with a non-parole period of 14 months.

70I declare that pursuant to s 18 of the Sentencing Act 1991 you have served 15 days by way of presentence detention to be reckoned as already served under this sentence. You can take a seat now, Mr Seferi.

71I make the orders for forfeiture and disposal as sought.

72Mr Kelly, are there any custody management issues for your client?

73MR KELLY: The only custody management issue is that, leaving aside the 15 days he has already served, it is his first time.

74HER HONOUR: It is his first time in custody?

75MR KELLY: First time in custody.

76HER HONOUR: I will have that noted in the records. And if there were drug withdrawal matters that needed to be managed?

77MR KELLY: I understand that has been - - -

78HER HONOUR: Managed privately?

79MR KELLY: Managed privately, Your Honour.

80HER HONOUR: I see, all right. Thank you, Mr Kelly.

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