Director of Public Prosecutions v Selaci
[2019] VCC 909
•20 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-00283
Indictment No. J13036291
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SELIM SELACI |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2019 | |
DATE OF SENTENCE: | 20 June 2019 | |
CASE MAY BE CITED AS: | DPP v SELACI | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 909 | |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis (commercial quantity), theft of electricity, possess cannabis.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms E. Maguire Mr Harrison | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray Mr S. Andrianakis | Stephen Andrianakis & Associates |
HIS HONOUR:
Selim Selaci, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis, one charge of possession of cannabis and one charge of theft of electricity. The agreed summary sets out the maximum penalties. You are 58 years of age and have no criminal history.
This matter was opened to me yesterday by Ms Maguire, who appeared on behalf of the Director of Public Prosecutions. A written opening dated 24 May 2019 was marked as Exhibit A on the plea. There were also some photographs in the depositional materials which portray the crop and the nature of the set-up of the house. This was an agreed opening, and so it is unnecessary to go into the full details of the facts. I will not go beyond that agreed material.
The summary describes the nature of the crop that you were cultivating at your home at 10 Reefton Court in South Morang. I say your home; in fact these were premises owned by your son, but you were living there alone at the time. Police executed a warrant at that address early on the morning of 21 November 2018 and you were found inside.
As the photographs and summary disclose, there was a sophisticated hydroponic cannabis set-up within the house with a number of rooms set up to grow. There were plants at various stages of the growth cycle. There were a total of 35 plants as well as 28 leafy stems. The total weight of the plants was a touch over 83 kilograms. The possession charge relates to some loose, dry cannabis, found in the kitchen and not said to have arisen from this venture. It weighed 46.9 grams and the prosecution accept that the lower penalty provision should apply. That is that I should be satisfied on the balance of probabilities that the possession was not connected to any purpose related to trafficking in that drug. I accept that is so.
There was an electrical bypass in place and the ‘usual’ array of equipment for this sort of concern such as grow lights, shades and watering and exhaust systems. The summary goes into the further detail as to the precise layout of the house and all that was found within. Commercial quantity is very comfortably attained by weight here, over three times the commercial quantity. This is a quantitative-based regime.
Unlike so many cases where the person in the dock is said to be a ‘mere’ crop sitter or some low level functionary, this was your venture.
You could not have been more co-operative with the police. You made admissions to the police as soon as they attended. You then made very fulsome admissions in the later formal police interview, admitting that you lived in the premises alone and that you had set up the crop and done so alone; that you had researched the process; that you had purchased the equipment; that you set up the power bypass, nurtured, watered and fed the crop with a view to harvesting to sell; that you and you alone had done these things and you and you alone stood to profit. You were in it for financial gain.
In Mitigation
Mr Rattray conducted a plea on your behalf. He took me to your background and the reasons behind your decision to grow cannabis. Also as to how he said the offence may be characterised. He relied to some extent upon a report from Ms Lechner as well as a work reference from a past employer. He had prepared a brief written outline and, with that document and the oral submissions supplementing it on the plea, he raised a number of matters in mitigation. Those matters were:
· Your co-operation with the police;
· Your early guilty plea;
· The presence of remorse;
· The absence of any prior criminal history and good prospects of rehabilitation;
· The increased custodial burden owing to your concern for your family's predicament, mainly your wife.
This was a category 2 offence and Mr Rattray was not suggesting that there was any basis to consider a combination-type disposition. Instead he conceded the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period, but he argued for the provision of a decent gap between the head sentence and the non-parole period.
Prosecution
Ms Maguire, who appeared on behalf of the Director of Public Prosecutions of this state, made some submissions as to the gravity of this example of cultivation. You had more than three times the commercial quantity, it was a sophisticated set-up and it was all yours, she said. She submitted that you had a high level of culpability. She argued that it fell into the mid-range of offending given that you were the principal here. She took me to a case of Lu [2017] VCC 958 as being broadly comparable. There were some differences including in that case, a lesser weight but a longer period, including an earlier harvest of a crop. Obviously the prosecution was calling for an immediate term, but Mr Rattray was conceding that that outcome was inevitable here.
Background
I turn now only briefly to your background. It is set out in detail in the report of Ms Lechner. I have no reason to doubt the material provided as to your family background, so I see no need to restate it all now. Briefly stated you are 58 years of age. You were born on 18 March 1961 and grew up in Albania with your parents and family. You were one of five children. You were educated to Year 10 level or thereabouts and then did a hospitality course and then did two years of national service, where you worked as a chef. You later worked on a farm.
You escaped to Greece in 1986 and spent some time in a refugee camp before coming to Australia in 1987. You have lived here ever since. You are an Australian Citizen. I checked with your counsel about that as it was important that I know one way or the other, as the risk of deportation might otherwise have been a matter in mitigation here. Thankfully for you, that risk does not arise.
You have had a number of different jobs in Australia with the longest as a cleaner at Melbourne University. You last worked full-time a couple of years ago, though there was some occasional work with Mr Cela from January 2018, as his reference attests. He also speaks highly of you in that reference. You have had a very decent employment record since you came to this country.
You are a married man, married for 32 years with three grown-up children. At the time of the offending your life had taken something of a turn for the worse. I do not doubt that. You had separated from your wife and were unemployed at the time. She had not been well and in fact had travelled overseas with one of your sons. You were living at the premises alone. You had started to use cannabis and I was told that there was some financial stress. There was really no information provided to me as to that financial position. There was nothing to suggest that it was a actually dire in any way. There was no reason why you could not have worked in paid employment subject to finding a job.
Since arrest you have been on bail. That was until yesterday. I remanded you in custody yesterday.
Ms Lechner had conducted some testing and some of those tests disclosed a level of anxiety and depression. The tests were ones which establish by self-report the symptoms over the fortnight prior to the test being conducted.
You have reconciled with your wife. She is still in poor health and that no doubt will play on your mind. You have, for instance, assisted with driving her to medical appointments and of course you will not be able to do that for quite some time now.
You have no prior criminal record at all. That is important. This is your first foray into crime and regrettably you have jumped in right down at the deep end.
The reliance on the report of Ms Lechner is actually quite limited. She plainly comments on the absence of factors which may traditionally impede rehabilitation such as drug addiction or serious mental health issues. So Mr Rattray relies on that aspect of the report and also the commentary as to your future prospects of rehabilitation and the limited treatment needs for the future such as perhaps the desirability of some low-level counselling.
You appear to be of average intelligence and you plainly know the difference between right and wrong. Ms Lechner saw you on one occasion and she to a large extent relies upon what you have told her. It is not even clear if she had your police interview, from the report itself. She states on p.3 of the report, as well as at point 3 of the Opinion, that you were in a low mood and did not really think through the potential consequences. That is it is likely that your problem-solving judgment and reasoning skills were all marred by your depressed mood state, your sense of isolation and your recent use of cannabis.
That, if I may say so, is a puzzling conclusion given the nature of the cultivation you engaged in. This was a sophisticated set-up. You were functioning at a pretty decent level to research this activity, to source and then buy the equipment, to set up the house, to bypass the power and then to set up the irrigation, lighting and extraction fan. Your reasoning skills must have been decent enough at the time. I just do not accept her opinion in that regard.
Mr Rattray was also explicit in stating that there was no reliance upon any of the six principles from the case of Verdins, so, whatever might be said of Ms Lechner's opinion, he was not suggesting that there was any Verdins-based reduction in culpability here at all. That does not stop me from considering your position at the time and, as I have said, I doubt if you were in fine fettle at the time. You probably were in a quite low state, but you knew exactly what you were doing.
Guilty plea
I turn then to some of the matters raised in mitigation by Mr Rattray. The first of those is your guilty plea. You have pleaded guilty at the earliest stage. You have facilitated the course of justice. You have taken responsibility for these crimes. Witnesses have been spared the experience of coming to court. If follows then that the community has been saved the time, the cost and the effort associated with a contested hearing. I take those matters into account in mitigation. Further, you made very detailed admissions indeed to the police and they are worthy of quite separate recognition by me. You told the police matters of which they had no information in their possession, including your intentions as to the crop and how long you had been at it. Cases such as Ellis, Doran and Latina suggest that this sort of material is to be adequately and separately recognised, and I do so here.
Remorse
Your counsel argues that you are remorseful. A guilty plea is often indicative of some remorse. I am prepared to find that you do have some remorse here. There is reference in the report of Ms Lechner to your seeing the error of your ways. You know what you have done and you know how wrong it was. You also made those very detailed admissions that I have spoken of and that is significant. I take the existence of some remorse into account in mitigation in this case.
Custodial Burden
I turn now to the issue of the suggested increased custodial burden. You are now in prison and of course you will be for quite some time to come. It will not be easy. It is your first such experience and it cannot be easy at the best of times to go to prison for the first time. Your wife is not in great shape with the health issues disclosed in the report of Ms Lechner and elaborated upon in the oral submissions made by Mr Rattray. She will not be receiving any assistance from you for quite some time to come.
Now, I am not allowed to take into account third-party hardship other than in exceptional circumstances and they do not exist here; that much is conceded by Mr Rattray. Others will step up to assist your wife, that much is plain. Still you will be serving a first term in custody in circumstances where you will be, I think, understandably concerned as to your wife's predicament. You will know that you will not be able to assist her in any way, and her life will to some extent be disrupted by your absence, and so too the lives of your other family members who will have to take up some of the burden. I accept then that this will increase your prison burden to some extent and I take that into account, but I must tell you it cannot be a sizeable matter in mitigation. Your absence from the home and from her was the inescapable consequence of committing a crime as serious as Charge 1, that is the commercial cultivation charge, and being caught doing it.
Rehabilitation
As to your rehabilitation, Mr Rattray argues that those prospects are good or favourable. He used those terms interchangeably. You have taken to crime very late in the piece in a setting where there had been at that time separation from your wife, a period of unemployment and some level of financial stress. You are 58 years old with no past history before the courts and a solid work record behind you. You have reconciled with your wife of 32 years. You have no serious mental health concerns which may impede rehabilitation, nor do you have any long-term, serious drug addiction issues to lead you into crime.
You have been arrested in the house on the morning in question, charged and then brought before the courts. There has already been I am sure something of a salutary lesson here and Ms Lechner speaks of that. You have then pleaded guilty at the earliest opportunity and you do exhibit remorse. You will have to serve the sentence that I will shortly pronounce and it will not be easy for you. All of this will surely serve to deter you to some degree into the future. I believe that you do have good or favourable prospects of rehabilitation and a low risk of engaging in this sort of serious conduct ever again.
General remarks
I address now some general remarks to you. You committed this serious crime for financial gain. I speak of crime, though of course there are three charges before me, but plainly the cultivation of a commercial quantity, cannabis is the most serious offence by far. It is a serious crime.
I have to take into account the nature and gravity of the offence. You were not some low-level crop sitter or minor player. Everything we see in the photographs, all that is mentioned in the summary, you and you alone are responsible for. You had the expectation of making decent enough money, there is no question about that. I am satisfied of that beyond reasonable doubt. I am sentencing you for cultivation and theft on the single date, that is the arrest date, but obviously, as your counsel concedes, your level of culpability can be assessed from the overall context including your admissions made to the police.
This was your venture and it was an unmistakably sophisticated set-up. There was a large array of equipment. You were investing in all of the equipment and doing so with the expectation of making a profit, as you told the police. It is not mitigatory that the police happened along and intervened and your plans all came unstuck, nor is it mitigatory that you did not necessarily have any detailed plan as to who you would sell the cannabis to. This was your venture and yours alone. You were the financier, the architect, the principal, the beneficiary. There was no one else.
You were undoubtedly taking a calculated risk. You made a choice to commit this serious crime. Of course you must have weighed up the pros and the cons. You must have weighed up the risks. You knew it was a serious crime, I am satisfied of that beyond reasonable doubt. I do not accept your account to Ms Lechner or her opinion in this regard as to not thinking through the potential consequences. No doubt you hoped that you would not be caught.
As to your motivation, I see no evidence before me of any disastrous or dire financial plight or need. You had a roof over your head. You were not prevented from engaging in paid employment at the time. You had, it would seem, a relatively supportive family, though I do note from Ms Lechner's report that you present really as a quite stoic type of man who perhaps does not like to ask for help or assistance and I bear that in mind. You were hoping to make money . Even if there had been financial need, it would not be greatly mitigatory, but I read the interview again and you were not describing ‘need’ in your police interview. You wanted to buy a van. There is, it seems to me, a high level of culpability in this case.
As I have said in countless other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police on the morning in question. This was an elaborate, planned, organised criminal activity. There was nothing spontaneous about your offending. You had done the research, you had obtained and assembled the equipment, you had set up the house and the bypass and done all the things necessary to get this thing underway. You had ample time to reflect on the seriousness of your crimes, ample time to pull back from the brink. Instead you chose to offend and now of course you will pay with your liberty.
The charge of commercial quantity cultivation carries a maximum term of 25 years' imprisonment. That surely speaks of the way in which Parliament view this crime generally and I must pay regard to the maximum sentence available.
Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe they are good here in this case. I am required to manifest this court's denunciation of your criminal conduct and I do. I must also punish you justly and proportionately. Punishment is of course an important purpose in this sort of case. I must seek to deter you and others from committing this sort of offence. It seems to me that this concept of specific deterrence, that is deterring you from committing crimes in the future, is less important in this case than in some cases.
You made very full admissions. You went into great detail. Those things are valuable to you now in the judgments I make as to your future prospects, amongst other things. A more canny or seasoned offender would no doubt keep a tight lip. You chose to talk to the police and made very damaging admissions indeed. Though on the one hand of course they hurt you, disclosing as they do your level of involvement, your culpability and your motivation, on the other hand they assist you, as I now factor them in by way of mitigation.
Cases such as Doran, Latina and Ellis suggest that this sort of detailed admission of matters not then known to police can be demonstrative of sincere or genuine remorse, indicative of good rehabilitation prospects and may even lessen the need for specific deterrence. You followed up that highly cooperative attitude by then pleading guilty at the outset. You are remorseful. I would be surprised if specific deterrence has not already been achieved to a large degree. I think you have good prospects into the future and a low risk of reoffence and I believe it is therefore open to reduce the weight to be given to specific deterrence, as well as to community protection. It would be very different indeed if, for instance, you had relevant prior criminal history or even if you had been found guilty at trial having pleaded not guilty, but that is not the position. So I believe that there can be significant moderation of the weight to be given to community protection and specific deterrence in this case.
General deterrence is, however, in a very different position. It is a very significant purpose of sentencing in a case such as this. Those who choose to engage in this activity at whatever level are virtually always taking a calculated risk as you were. It is virtually always taken on because of the hope of some financial gain or reward. People must understand that this is a serious crime and that though there is the potential for financial reward, it comes with a risk. The risk is of detection, prosecution and then the likelihood of the imposition of a very significant term of imprisonment. This court must send that message loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence.
Current sentencing practice
I pay regard to current sentencing practices. It is not a single, controlling factor, it is one of the matters a court has to have regard to. I have looked at the Sentencing Snapshot No.222 of 2018 as well as the more up-to-date SACStat data for the offence of commercial cultivation. I have also looked at some of the material held at the Judicial College of Victoria sentencing site, including an overview of commercial cultivation sentences dealt with in the Court of Appeal. See 33.13.5.1 and 2. I have ignored the large commercial quantity cases, as there is a higher maximum penalty at play.
The fact is that there have been many cases over the years querying the adequacy of sentencing practices for this crime. The case of Nguyen [2016] VSCA 198 sets out a number of those cases and also has a fair bit to say as to the inadequacy of sentencing practices for this crime when committed at certain levels. There is much by way of statement of principle within that case that is clearly relevant to my task. The case contains many statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence.
Now, that case of Nguyen was not focussing on low-level players. It was more directed at medium-level cultivations and the compression of sentences that seems to have taken place over the years. You are no low level player, that is for sure. Your counsel does not suggest you are, though urged me to take a nuanced approach and not to be simplistic. That is to say not let the term 'principal' overshadow or inflate your true position here. He reminded me that you had no links to organised crime and no real understanding as to what you would be doing with the crop. I will take on board Mr Rattray's advice and try my best not to be simplistic.
The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role. Those sorts of things can actually obscure a person's conduct. Focussing on the actions and conduct is what is important, not the label that is applied. As the Court of Appeal said recently in the case of Nguyen v The Queen [2019] VSCA 134 at paragraph 59:
'A sentencing judge is required to sentence an offender … by reference to all of the facts of the case [including all of those able to be gleaned about the offender's role and involvement] and not by reference to whether the offender can be given some particular appellation.’
I do not need to speculate about what you were doing or try to draw inferences as to your role. What was it that you were doing in this cultivation? Everything. That is the answer; everything. You set up the venture. Having set up the crop you were growing it to sell. You used cannabis at the time and you must have had dealings with people who sold it. You after all possessed the cannabis the subject of Charge 2. You must have had some broad or fair understanding of the value of the drug. You had the expectation that you would find a market in one way or another in relation to this crop. You were expending a significant amount of effort and funds and were doing so in the expectation of significant financial gain.
Your culpability was very high here. You can be contrasted with low-level players, even those low-level crop-sitters who may be connected up with a much larger criminal hierarchy. People such as that, they take no key decisions. They are often enough not even involved in the set-up, they have no financial stake. They do what they do often for a very small payment and they take on all the risk. You on the other hand are a principal, not just a principal, you are the principal, and you are doing all of these things. You had the sole interest in this crop and what it might realise. You very comfortably fall into the mid-level in terms of offence seriousness.
Now, I have mentioned the sentencing statistics and also other cases. Statistics always have limitations, so too do other examples of sentences imposed on other people. I am not going to sentence you according to medians or averages or most common previous outcomes. They are just statistical terms. Every crime is different and so too is every offender. And other cases, even though they disclose sentences upon other offenders, they are not precedents.
I note in that recent decision of Nguyen v The Queen [2019] VSCA 134 that I have just mentioned that was delivered a few days ago, that the sentences of three years and eight months were confirmed on appeal; but I note also the statements of that bench of the Court of Appeal that the sentences in that region are entirely unexceptional even for crop sitters. See paragraph 65. I have also looked at the decision of Lu [2017] VCC 958, to which I was referred by the prosecutor. There are many differences in terms of the facts of the crime and the personal details of the offender. Lu had a lesser quantity of cannabis, but he had a longer period embracing that earlier harvest.
Other cases are not precedents, as I said, and those other sentences were not the only sentences available in the other case in any event. It is clear from the many cases in this area that cultivation in a commercial quantity of this drug is a serious and prevalent crime where a term of imprisonment is almost unavoidable.
General deterrence must be at the forefront of any sentence imposed by the court. That much again is made plain in virtually all of these decisions. See also the case of Pham [2007] VSCA 234. Yours was not some low-level venture. You were not some low-level player. Commercial quantity was reached by weight, over three times the commercial quantity. Then there is the whole set-up. It was very much a sophisticated and professional arrangement. There were a number of rooms under cultivation. There was a bypass. This was a serious example of a serious crime and you were the principal.
The theft of electricity is far less serious, though of course it is still serious enough. It was a quite calculated step to take. It is ordinarily deserving of some cumulation. The possession of the cannabis is the least of your worries given the lower penalty provision at play in relation to that charge.
I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality. I have taken into account all of the submissions that have been made on your behalf as well as the exhibits placed before me.
Forfeiture
There are a couple of ancillary orders that are sought. The first of those is a forfeiture order in relation to the two items referred to in the schedule. That is consented to and I am satisfied upon convicting you of a Schedule 1 offence, that is cultivation, that the property referred to in the schedule be forfeited to the Minister pursuant to s.33(1) of the Confiscations Act. I have signed that order.
464ZF
The second application was an application for a forensic sample. Again that is not opposed by your counsel. I order pursuant to s.464 of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that the order is not opposed and that I judge it to be in the public interest to make the order.
What I am dealing with there, Mr Selaci, is a forensic sample. I have authorised a mouth swab to be taken from you. I had open to me a blood sample, but I always authorise the least invasive process. Someone in a position of authority will approach you to take a swab from your mouth while you are in custody. It is not a difficult business, there is no pain involved in it. It is not particularly invasive and it should be pretty straightforward, but I have to tell you that they can use reasonable force to take that sample. I tell you also, of course, that I have authorised the swab from your mouth at the moment; if there were difficulties in that no doubt the authorities would be back before me making application for a blood sample, which to this point I have not authorised.
Sentence
Yes, all right. Can you stand up then, please, Mr Selaci.
On Charge 1, that is the charge of cultivation of a commercial quantity of cannabis, you are convicted and sentenced to 46 months or three years and 10 months' imprisonment. That is the base sentence.
On Charge 2, which is the possession of a drug of dependence, being cannabis, you are convicted and fined $300.
On Charge 3, theft, you are convicted and sentenced to seven days' imprisonment.
In the circumstances of that theft, there is just no material before me as to quantum and it relates only to that single day. In those circumstances I am actually going to run that sentence concurrently upon the base sentence, even though there are enough authorities suggesting that some level of cumulation is virtually always warranted. It would be very different indeed if it was a between-dates charge relating to a high value theft, but that is not the position that I am facing, so I believe that total concurrency is open to me.
Total effective sentence
The total effective sentence is therefore that sentence of 46 months or three years and 10 months' imprisonment.
Non-parole period
I am going to provide a very significant gap between your head sentence and the non-parole period. I fix a non-parole period of 26 months, or two years and two months. So that is the period during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
You have already served one day by way of pre-sentence detention and that is to be entered into the records of the court pursuant to s.18.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, it would have been a very different sentencing exercise, I can tell you. I would have sentenced you in those circumstances to a term of six years' imprisonment. I would have fixed a non-parole period of four years. That statement is to be entered into the records of the court.
Just grab a seat for a moment. I will just see if there is anything else I need to deal with. Mr Harrison, are there any other matters at all?
MR HARRISON: No, Your Honour, those are the orders sought.
HIS HONOUR: Mr Andrianakis?
MR ANDRIANAKIS: No, Your Honour.
HIS HONOUR: Are you going to pop down and see your client today?
MR ANDRIANAKIS: I will.
HIS HONOUR: Yes, all right. Well, thanks very much. So, Mr Selaci, that completes the matter then. So Mr Andrianakis will come down and see you downstairs to have a talk about what's happened, all right? Yes, thank you.
I've got an appeal list, so I'll come back onto the Bench at 10.30.
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